Opinion
July Term, 1818.
From Cumberland.
When a slave cuts timber on land not belonging to his master, the master is liable in trespass, if the act were done by his command or assent; but if it be the voluntary and willful act of the slave, the master is not liable.
TRESPASS against defendant for cutting timber on plaintiff's lands. The evidence was that a slave, the property of defendant, had cut the timber; and the court directed the jury that if the cutting was done by the command or assent of the defendant, that he was liable; but that if the act was the voluntary and willful act of the slave, then the defendant was not guilty. Verdict for defendant. Rule for a new trial refused, and an appeal to this Court.
McMillan for defendant.
It would be repugnant to principle, and in direct contradiction to every adjudged case, to support this action of trespass against the master for this act of his slave, which was not done at his command or by his assent. From all the cases it is to be collected that where the act of (390) the servant is willful, and such that an action of trespass and not an action on the case must be brought, the master is not responsible, unless the act is done by his command or assent. But where mischief ensues from the negligence or unskillfulness of the servant, so that an action on the case must be brought and not an action of trespass, then the master will be answerable for the consequences in an action on the case, if it is shown that the servant is acting in the execution of his master's business and authority. It is true that a man is liable for trespasses committed by his cattle in treading down the herbage on another's soil; but that is because he is bound to keep them within a fence, otherwise they will wander and probably do much mischief; but he is not bound to keep his slaves confined, and if he were, it would be a monstrous thing to charge him with their depredations.
This is an action of trespass vi et armis against the defendant, for the act of his servant. The jury have found, under the charge of the court, that the defendant did not command or assent to the trespass committed by the servant.
The plaintiff contends that the defendant is liable for the acts of his servant in this action, notwithstanding he knew nothing of them. The law on this subject is clearly laid down by Lord Kenyon in McManus v. Crickett, 1 East, 106. He says a master is not liable in trespass for the willful act of his servant done without the direction or assent of his master. He further remarked that it was a question of very general concern, and had been often canvassed; but he hoped it would at last be at rest.
An action on the case would be against a master for any damages arising to another from the negligence or unskillfulness of his servant acting in his employ, although the master knew nothing of the act at the time; as when the captain of a vessel runs down another vessel by his negligence or (391) unskillfulness, or where a servant does another an injury by negligently driving his master's carriage or riding his horses. 1 East, 106; 1 Chitty, 68, 131; 3 Wills, 317.
But where a servant willfully commits an injury to another, although in his master's employ, as if he willfully drives his master's carriage against another, the master not knowing or assenting to it, an action of trespass cannot be sustained against the master.
Motion for a new trial overruled.
Cited: Parham v. Blackwelder, 30 N.C. 449; Stewart v. Lumber Co., 146 N.C. 88.