Evans v. Davidson

Alvey, J., delivered the opinion of the Court. The only substantial question in this case is, whether the defendant, the present appellee, is liable for the wrongful act of his servant in killing the plaintiff’s cow, while driving her out of the defendant’s corn-field. ²⁴⁸ It appears in proof that the defendant was a farmer, and that his farm adjoined that of one Boulden; that he had employed on his farm negro Lewis, and two other negro hands, and that they were employed for a period of nine months, to do general farm tvorh on the farm; that on the day the plaintiff’s cow was killed, the defendant was away from home, and that the three negro servants or hirelings were at work in the corn-field cultivating the corn, when a herd of cattle, consisting of about thirty head, among which was the plaintiff’s cow, broke into the defendant’s corn-field, where his hirelings were at work, from the adjoining farm belonging to Boulden; and that, upon discovering the cattle among the corn, the servants “ immediately started to drive them out, and in doing so the said negro Lewis negligently struck the plaintiff’s cow with a stone, and killed her before she had left the field.” There was also proof on 'the part of tjie defendant that he had given no orders in regard to driving cattle out of the field, and that he did not know that the cattle were in the corn until after the cow had been killed. The Court below, at the instance of the defendant, instructed the jury that there was no evidence in the cause legally sufficient to entitle the plaintiff to recover. To this ruling, and the rejection of the prayers offered by the plaintiff, the latter excepted.

There is no question as to whether the relation of master and servant existed between the' defendant and the party doing the wrongful act complained of; that is conceded. But the question is, whether the act of driving the cow out of the corn-field was within the scope of the servant’s employment, under the circumstances of the case. If that act was, either expressly or by fair implication, embraced within the employment to do general farm work on the defendant’s farm, then, it is clear, the latter is liable for any wrong or negligence committed by the ²⁴⁹ servant in doing the act authorized to he done. In one sense, where there is no express command by the master, all wrongful acts done hy the servant may he said to he beyond the scope of the authority given; but the liability of the master is not determined upon any such restricted interpretation of the authority and duty of the servant.

If the servant he acting at the time in the course of his master’s service and for his master’s benefit, within the scope of his employment, then his act, though wrongful or negligent, is to he treated as that of the master, although no express command or privity of the master he shown. This general principle is sanctioned hy all the authorities.