Cunningham & Ellis v. Kate A. Moore et al., 55 Tex. 373

Bonner, Associate Justice. Under the view we take of this case, it does not become necessary to decide,. whether, to the misfortune of the surviving relatives of the deceased, Spencer C. Moore, that he was a convict, shall be added the loss of the right to sue for damages resulting from his death, were they otherwise entitled thereto. It was the evident intention and wise policy of the legislation in regard to our penitentiary system, that the state should, by officers of its own selection, retain an immediate and direct supervision and control over the convicts.

The very statute under which this lease was made, expressly provided that the governor should appoint three commissioners, who, in conjunction with him, were to “ Take such measures, and adopt such rules and regulations in the control and management of the penitentiary, and the convicts belonging thereto, as should be deemed best, not inconsistent with the laws prescribing the treatment and management of convicts; and such rules and regulations shall be binding upon all officers of the penitentiary, guards, employees, hirers of convict labor, and all others in any way connected with the penitentiary, or the convicts within or without the walls.” . . .

It is further provided that . . . “no lease shall be made by which the control of the prisoners, except as to a reasonable amount of labor, shall pass from the state or its officers to the lessees; and the state shall in all cases, and under all circumstances, retain the absolute control of the persons of the convicts, put them to or withdraw them from any kind of labor; station and remove them at or from any point inside or outside the prison; make or change at pleasure all rules for the discipline and punishment of convicts; prescribe regulations for their food, clothing, nursing, instruction and guarding; and any lease made shall be subject to the reservation of these rights and powers on the part of the state, whether so stated in the lease or not; the object of these limitations being to prevent the state, under the guise of contract, from parting with the right to direct how, afc any time and under all circumstances, convicts shall be lodged, fed, clothed, worked and treated.” . . .

Gen”l Laws 15th Leg., 19L-5, secs. 6 and 7; R. S., art. 3572. The undisputed testimony shows, that, in pursuance of this power, J. T. Echols was appointed by the commissioners, sergeant in charge of the convict camp to which the deceased Moore belonged; that under his supervision, and by direction of one of the commissioners, the bunks in question were constructed; that when the convicts were turned in at night, they and the prison house were under the exclusive control of the sergeant; and that the lessees had no right to order those convicts off the bunk, by whose weight it was broken down.

It is a well settled principle, founded on reason and supported by abundant authority, that the relation and liability of master depends upon the right of control over the servant. Cunningham v. R. R. Co., 51 Tex., 510, and authorities cited. Applying this rule to the facts in evidence, Cunningham and Ellis were not responsible either for the construction of the bunks or for the imprudent act of the convicts which occasioned the injury.

It may be added that the uncontradicted testimony further shows, that, had it not been for the contributory fault of the deceased, he would not have been injured; and besides, according^ to the great weight of the evidence, the bunks were reasonably well constructed for the legitimate purposes for which they were made. The learned judge presiding charged the law of the case, but the verdict of the jury was both unsupported by and against the evidence, and the motion for a new trial should have been granted. For the error in overruling it, the judgment is reversed and the cause remanded.

Reversed and remanded. [Opinion delivered October 25, 1881.]