
    THOMAS JONES vs. JOHN GLASS.
    The master is answerable for any carelessness, ignorance or want of skill in his overseer, while^engaged in the course of the master’s employment whereby a permanent injury is done to a slave, hired from another person.
    Pek Ruffin, C. J. This was simply a case of bailor and bailee, and on the principles applicable iu that relation, the plaintiff should recover.
    Appeal from the Superior Court of Law of Caldwell County, at the Fall Term, 1851, his Honor Judge Dick presiding.
    This was a special action on the case, brought to recover damages for an injury done to a negro slave, the property of the plaintiff, by the overseer of the defendant.
    The facts of the case were substantially as follows : The plaintiff hired a negro man, named Willie, to the defendant, who was a miner, to be employed as a laborer in the mine. The defendant had an overseer, by the name of Massey, under whom the said Willie and other hands were placed, Massey having the control and management of the said Willie and the other hands. On a certain morning,. Willie went to work at the mine, but early in the day quit his work, came to the negro house, where he usually lodged, and alleged that he was sick and unable to work. Massey, the overseer, missed him at the mine, and followed him to the house, and attempted to tie him, for the purpose of correcting him. Willie offered to submit to correction, but said he did not wish to be tied. The overseer insisted on tieing him, and succeeded in tieing one arm, on which Willie made some move towards the door, as if he would escape. Upon this, Massey took up a piece of wood, about three feet long and three inches in diameter, and gave him a violent blow on the left side of the head, and knocked him down, where he remained until the next day. A physician, «who was sent for, stated,'-that he found Willie lying on the floor, speechless; that there was a large fracture or indentation of the skull,'and his whole right side was paralyzed ; that he expected him to die in a’ short time; but that, after a few days, he began to get better, and so continued until'he ceased to attend him; and about three months after, he received the injury, he was sent home to his master. The condition of the negro-after -that time was proved by other witnesses.
    The'defendant’s counsel contended that the defendant was not liable,-because the blow inflicted by Massey was a tresspass with force and arms, and not injury resulting from negligence. And as the defendant was' hot present when the blow was inflicted, and discharged Massey, as soon as he was informed of it, he was not' liable to the plaintiff.
    'The Court charged the jury, that Massey, being the overseer of the defiendant, and having, by-his authority, the control and management'of the slave Willie, had a right, as overseer, to -correct the slave in a reasonable manner, in order to reduce him to submission to his lawful commands ; but if, in doing so, he negligently or carelessly used an instrument, wholly unjustifiable for reasonable correction, and a permanent injury to the slave was thereby inflicted, the plaintiff was entitled to recover tor the injury he had sustained.
    The jury found a verdict for the plaintiff, and from the judgment thereon the defendant appealed.
    No counsel for either party in this Court.
   Nash, J.

We concur in the opinion of the Judge below. The only question is as to the relation in which the defendant stood towards Massey, the man who inflicted the blow. The case is shortly this: The defendant was the owner of a mine, which be worked, and employed as his overseer, the man Massey. The plaintiff hired to him a negro boy, as a hand to work in the mine; Massey, for some alleged offence on the part of the boy, was abont to correct him, when, being tied, the boy made a motion to escape, when Massey struck him on the side of the head,, with a piece of wood, abont three feet long, and between two and threeinches thick. Massey was the defendant’s manager,, or overseer, and for every injury which- he does to the property of another, entrusted- to his care, in carrying- on the business ©f the defendant, which is the result of carelessness, ignorance, or want of skill, the latter is answerable. Massey had a right to correct the boy, Willie, and compel him to do his wqfk. The boy had left the mine without permission, under the allegation of being side. Whether he was in a condition to labour, Massey was the judge, and at the time, the sole judge, and it is but just to suppose, that, in the effort to punish the boy, he was satisfied that sickness ■was feigned by him. The act, therefore, of whipping or ■chastising the boy, was, on the pari of Massey,-a lawful one, to the extent of compelling him to work, and the owner of the boy has no right to complain ; but in the- correction, it was his duty to-do it properly, that is,in a pro-per manner, and with a proper instrument. If lie was negligent, or guilty ©f a want of care, in either particular, he is answerable for any permanent injury resulting to" the boy. True, Massey was guilty of great negligence in the use of an instrument, calculated, not to correct, but to kill. ■The responsibility, however, is not confined to Massey, but extends to his employer. Be was Iris selection, held out by him, to others, as a man, to whose skill and discretion, slaves could safely be entrusted, in carrying on the mining business; and the work was done for him. And the blow which caused the mischief, was given by Massey, in performance of the defendant’s business, and to compel an-attendance to it. It is not like the case of a servant, who, in driving his master’s carriage, voluntarily, and of his own head, leaves the track he is in, and runs over a man. The master, there, is not answerable, for the plain reason, that, in committing the trespass, the servant was not doing the, business his master had put. him about; Here Massey was doing the very thing, for which the defendant had employed him, to wit; overseeing the hands, and compelling them to the work in which they were engaged. In executing his duty, he was, in using the instrument he did, guilty of great negligence, and want of care, for which the defendant is answerable.

Ruffin, C. J.

Much of the argument respected the liability of a- master for injuries to ,strangers from the wilful or negligent act of a servant. This, however, is not a case of that kind, but entirely different. It is a question between bailor and bailee for hire; and the plaintiff’s right to recover cannot be seriously doubted, upon the principles applicable to that relation. Such a bailee is entitled to make süch use, and bound to take such care, of the thing bailed, as persons of ordinary prudence usually do of their own. By that rule, the defendant must have been held liable, to the extent to which the value of the slave was permanently impaired, if he had himself inflieted the unreasonable and dangerous blow, with the deadly weapon, which his overseer gave, instead of resorting only to such moderate and usual correction, as would have reduced the slave to subordination,, and been of good example to other slaves. If the defendant would have been thus liable for the act, had it been that of his own hand, he is, as bailee, equally liable for it, as the act of one, to whose control and management he committed the slaves. If one hire, a horse* and work him excessively, or otherwise wantonly injure it, he is responsible for the damage, either upon his contract or in case. So, if he give it to his wagoner to drive, or lend him to a third person to drive in his wagon, and either of those persons over-work the beast, so that he die, or, in a passion at its restiveness or attempt to run away, maim it, inflict any lasting injury, the hirer would clearly be liable to the owner. It is true, the person, who did the deed, would be liable both to the hirer and the owner. But that cannot prevent the owner of his remedy against the hirer; since, by the contract, and also the obligations of the law, arising out of the relation between the parties, the hirer is bound to ordinary care, and he had no right to confide the property to a person, or his servant, or borrower from him, who would not treat it in the manner, in which he undertook it should be treated. The defendant was, therefore, bound for the care and conduct of his overseer towards this slave, as he was for his own; and the judgment should be affirmed.

Per CuRiAia. Judgment affirmed.  