Joseph Forsyth and Ezekiel Simpson, Appellants, vs. George Perry, Appellee, 5 Fla. 337

SEMMES, J., delivered the opinion of tbe Court: This was an action of trespass on tlie case, brought by the respondent against the appellants, as owners of the Steamboat “ General Hamer,” to recover the value of a negro slave, the property of respondent, and who was hired on hoard said boat, and alleged to have been lost through the carelessness and misconduct of the mate. The slave was ordered to jump on hoard said steamer from a flat-boat laying along-side. In the attempt to do so, he struck the guards of the steamer, fell into the water and was drowned.

On the trial of the cause, upon the plea of the general issue, the Court below instructed the jury — Firsts That a principal is liable civilly for any act of his agent, when there was negligence, if done within the scope of his authority ; and, Secondly^ That if the jury were satisfied that the mate was in the employ of the defendants, and he gave an order to the slave which no ordinarily prudent man would have given, and that in consequence of this order the negro was lost, they should find for the plaintiff; hut if, ou the contrary, they were satisfied that the order was not an unusual oue, under the circumstances, and that there was not gross negligence in giving the order, they should find for the defendants.

The jury returned a verdict for the respondent, and thereby established the fact of gross negligence on the part of the mate in giving the order which resulted in the death of the slave. Appellants’ counsel, in excepting to the chai’ge of the Court,' contends, that the right of action was against the mate, and not the owners of the boat; that hy reason of •the mate and the slave being at the time in «the employ of the Appellants, and engaged in the same business, and the loss of the slave having been caused by the misconduct of the mate alone, this action cannot be maintained.

The rule of law cannot be questioned, that cioiUter, the principal is liable to third persons for the misfeasances, negligences and torts of his agent, in the course of his employment, though he did not authorize, justify or participate in the act, or misconduct of the agent. 'In all suc'h cases, says Judge Story, the rule applies, respond&at superior, and it is founded on public policy and convenience. Story on Agency, § 452.

The justice and propriety of maintaining this responsibility on the part of the principal, results from the implied guaranty on his part, not only as to the qualifications of the agent, but that within the scope of his agency he will act with fidelity and a due regard to the rights of others.

The force and application of this principle is sought to be evaded in argument, by insisting that the owner of the slave is, not to be considered in the light of a third person, entitled to compensation for his loss against the Appellants ; and the exception to the rule is relied on, as supporting this view of the relative rights and liabilities of the parties to this suit.

The exception is, that when different agents are employed in the same business, the principal is not liable for any injury done to one agent by another agent, while engaged in the same common employment, and the reason assigned is, that the mere relation of principal and agent creates no contract, and therefore no duty on the principal that the servant or agent shall suffer no injury from the negligence of others employed by him in the same business, and that in such cases the servant or agent takes upon himself the hazard of every such injury, and his remedy, therefore, lies solely against tbe immediate wrong-doer.

Story on Agency, § 153. the principle here asserted is doubtless as true as the rule itself. But rvbile the facts of tbis case bring it within the rule, they necessarily exclude it from the exception. The effect of the argument, as will be seen, is to destroy the identity of the slave, and substitute the owner in bis place. But the owner docs not hire himself. He is not in the employ of the party, and in no light can be be regarded as bis agent.

The solo relation he occupies to the common employer is, as bailor of the property, and bis right of action for any wrong clone the slave, either against the immediate wrong-doer or bis principal, grows out of the fact that the slave is property and be the owner. the words Servant and Agent, used in the exception to the rule, and in the authorities relied on, are relative terms, and must, in the very nature of things, have no reference to free white persons ; for it cannot be seriously contended that a slave is to be considered, in any legal sense, the agent of bis employer.

In a limited sense, it is true, be is a servant, but be certainly does not occupy the higher relation of agent. The doctrine of agency is founded upon reciprocal rights and duties. The slave has none of these. the fact of his being a slave, places him beyond the opertion of this law. the very position be occupies, and is recognized by the law, renders it impossible to embrace him witbin that class of persons referred to. Unlike white persons, the slave does not, upon entering into the service of another, voluntarily incur the risks and dangers incident to such service.

He has no power to guard against them by refusing to incur the peril, or by leaving the service of bis employer. He is but a passive instrument in the bands of those under wrbose control be is placed. The exception to the rule applies to persons necessarily —those who are competent to contract, and who, while they are responsible for the consequences of their own misconduct, have the same rights and remedies as their co-agents. Why comprehend slaves, when it is manifest they have none of those rights or remedies against others, and are not liable in a civil suit for their own acts and misconduct ?

In all relations, and in all matters, except as to crimes, the slave is regarded by our law as property ; and being so considered, the case before us is governed by the law of bailments. Tho contract of hire in this case, constituting a bailment of the property, and it being reciprocally beneficiaTto both parties, something more than mere good faith, on the part of the bailee, is requisite. The owners of the boat were bound to take ordinary care of the slave, and failing to do so, through their agent, they are responsible for the consequences.

The fact of the slave being a human being, while it does not impair the rights of tho owner, would rather increase than diminish tho liability of the employer. Tn the case of Boyce vs.

Anderson, 2 Peters’ R., 156, Chief Jnstice Marshall, in delivering the opinion of the Court, says, “ Supposing the strict rule introduced for gen- “ oral commercial objects does not apply to the conveyance “ of slaves, the ancient rule, ‘that the carrier is liable only “‘for ordinary neglect,’ still applies to them.” In this case, the jury have found gross negligence, on the part of the mate, in his conduct to the slave, which would render the employers liable in any event.

Apart from tho views we have presented, considerations of public jiolicy, the interest of the master, and humanity to tho slave, require that he should be excluded from the exception to the rule, and that he should be shielded from the unrestricted control aud oppression of irresponsible subordinates. The liability of the employer, civilHer, for the misconduct of his subordinates, will naturally add to the personal security and protection of the slave.

Public policy emphatically demands, that the owners of boats, railroads, and other public conveyances, should employ careful and capable agents in their respective business, Let the judgment of the Court below be affirmed,