
    J. S. White vs. B. P. Smith.
    
      Pleading — Copartnership—Agent—Negligence—Slave.
    An action on the case for negligence occasioning the loss or destruction of a slave, hired by plaintiff to a copartnership, may be maintained against one of the members of the firm, without joining the other partners.
    One partner sued separately may be made responsible for the negligent act of an agent of the copartnership.
    Where a hired slave is injured by the negligent act of a co-employee, the master may recover damages against the hirer. The principles of Murray vs. The Railroad Company, do not apply to the case of a hired slave.
    BEFORE WITHERS, J., AT CHARLESTON, JANUARY TERM, 1860.
    The report of his Honor, the presiding Judge, is as follows:
    “ The action was case, claiming damages for a negro, Charles, killed upon the North Eastern Bailroad.
    “ The declaration contained two counts: the first alleging that the defendant took on hire from the plaintiff his negro, Charles, a house carpenter, to be employed as such, and had diverted him to a different employment, whereby he was killed, and alleged a liability thereupon to respond fob 'his value. The proof did not sustain this count, and the jury were so advised. The second count, reciting that the defendant, having charge of the slave of the plaintiff, on hire, was bound to take due care of him, but alleged that he had so negligently conducted himself in that behalf, that the slave had been wholly lost to the plaintiff, whereby the defendant became liable for his value. A third count was in trover. The case was made to turn on the second count. It appeared in evidence, that the defendant, and one Moore, were engaged by contract with.the North Eastern Railroad Company, in building a bridge over the Santee river, and one Jackson was their agent and superintendent of the work, and various hands, slaves and white men, engaged in and about that work; that they had a saw-mill, some miles from the river, and about one and a quarter miles from the St. Stephen’s Depot, where the lumber was sawed and the bridge framed; that the railroad company had agreed to transport on their trains the timber from the mill to the place where the bridge was to be erected; that the hands, and Charles among them, under the authority of Jackson, went back and forth, on the trains which carried the timber for the bridge framed at the mill, loading and unloading the cars; that on the 22d May, 1857, a train laden with lumber for the bridge arrived from the mill at the depot, and had to wait there and take such position as to permit another to pass; that the train had gone on the turn-out; that Charles, among other negroes, was on the platform, some having bags of provisions ; that while the train was backing up to the platform, Jackson on it, and moving slowly, supposed to be at the rate of three miles an hour, the engineer intending to stop (as he testified) as much for the negroes to get. on as for any thing else, Jackson, while the train was in motion, at the rate aforesaid, proclaimed to the negroes on the platform, ' all aboard;’ that one of the negroes sprung on one car laden with lumber, falling back on the lumber, but Charles, in the attempt he made on another car, failed, and falling between the moving car and the platform, two trucks passed over him, and he died in half an hour. The engineer said he remarked at the instant he heard the order from Jackson, that there was danger in it; and he and others said it was specially dangerous to attempt to get on such cars, platform cars, laden with lumber, with no steps or hand rail, while in motion. Jackson, in his testimony, stated, he gave the order above, and that Charles was at the moment asleep, or lying down.
    
      “ I put the case to the jury upon the questions:
    “ 1st. Was Jackson the defendant’s agent, and employed in and about his business, when he gave the order, ‘ all aboard ?’
    " 2d. Was that order, under the circumstances, negligent, and the cause of the negro’s death ?
    “I held, that this form of action could be maintained againt one of several who might be responsible for negligence. And though it might appear (and it did appear that the plaintiff, by agent; before and directly after the death of Charles, had given receipts for his wages to Moore and Smith,) that the hiring was to Moore and Smith, yet the allegation, (in this form of action the contract not being the gist of it, and the matter being recitative,) that the defendant had charge, and the care and custody of Charles, by hiring, was well enough maintained by the proof; and it was immaterial in action for tort that Moore might also be joined with him in the care and custody, and be also liable to be sued.
    “ The doctrine announced in the second ground of appeal was urged on the jury, but I told them I saw no- application of it to this case. I admitted it might have applied, if Charles’ master and Jackson had been co-employees under Moore and Smith.
    
      “ The jury were not prevented from taking the view set forth in the third ground of appeal, but I did not instruct or advise them to take it, because I saw no warrant for it in the evidence.
    “Nor was the proposition, that if an agent does a wilful act of trespass, enunciated in the fourth ground of appeal, controverted, but, on the contrary, recognised as law. I suppose the jury did not see the application of it in this case; nor did, or do I.
    “ I was not aware, till I read the fifth ground of appeal, that the verdict of the jury was liable to the criticism therein set forth. I think I comprehend what the jury-meant, because I advised them, if they found for the plaintiff' at all, to refer their finding to the second ‘count.’ Such was the noise, however, generally prevailing in the court room, that the jury may have understood me to say 'account,’ which I think I did not say ; while I acknowledge that if I had so said, it would have been more flagrantly erroneous, and decidedly more discreditable in me than I deem the same to be in the jury. I can only leave that ground of error to rest on proferí of the untechnical language of the verdict.”
    The defendant" appealed and now moved this Court for a new trial on the grounds:
    1. Because the declaration alleged the hiring of the slave Charles, to have been to B. Press Smith, by whose negligence he was killed; whereas the proof was, that .the hiring was to the co-partnership of Moore and Smith ; and if there' was negligence, it was on the part of the agent of the said co-partnership.
    2. Because his Honor erred in charging the jury, that the rule of law, that one employee cannot sue his principal for the negligence of his co-employee, could not, and did not, apply to this case.'
    3. Because, if the said slave had remained on the train, as was his duty, from the mill of Moore and Smith, the place of starting, to the Santee river, the place of destination, he would not have been killed. That the act of his getting off and falling asleep at St. Stephen’s d,epot, while the train was waiting for the passage of another train, was a wrongful and voluntary act; and that therefore his Honor should have charged the jurjr, as contended for, that if the conduct of the slave himself had not been free from blame, or if the mischief complained, of was the result of the combined negligence of both defendant’s alleged agent and the slave, there could be no recovery.
    4. Because the order of the alleged agent, if given, was under the circumstances wilful, and not within the scope of his authority.
    5. Because the verdict being in these words, ‘ we find for the plaintiff fifteen hundred dollars on the second account,’ and there being no account on which it could be founded, is uncertain and void.'
    
      Buist, Thomas Y. Simons, for appellant,
    cited on first ground: Max vs. Roberts, 12 East, 94 ; Weall vs. King, 12 East, 454; Storhfleet vs. Fryer & Bird, 3 Strob. 301.
    On second ground: Murray vs. S. O. R. R. Go., 1 McM., 385.
    On third ground: Richardson vs. Wil. and Man. R. R. Go., 8 Bich. 120 ; R. R. Co. vs. Winn, 19 Geo. B. 440.
    On fourth ground : Parleerson vs. Wightman, 4 Strob. 371.
    And on fifth ground: Gity Oouncil vs. Waheman, 2 Sp. 374.
    
      Kayne, contra.
   The opinion of the Court was delivered by

Wakdlaw, J.

This is an action on the case to recover damages from the defendant for negligence in the care of a slave committed to his custody on hire, by means whereof the slave was destroyed and wholly lost to the plaintiff. The first ground of appeal insists, that there is a variance between the allegation that the slave was hired to defendant, and the proof of hiring to defendant and his partner Moore, fatal to tbe action against one of the partners, inasmuch as both should have been sued. In actions ex contractu, it was formerly the rule, that the non-joinder of one or more joint contractors, was fatal on motion for nonsuit, where the general issue was pleaded; but it is settled since Rice vs. Shute, 5 Bur., 2611, in avoidance of the delay and expense of a trial, that this objection is waived by pleading the general issue, and that advantage of it can be taken only by plea in abatement, even where the plaintiff fully knew who were the joint contractors. And whatever may be the form of action, wherever the nonperformance of a contract is the basis of the suit and the contract must be proved, as in case for breach of a warranty of sale, the nonjoinder of a joint contractor is fatal on plea in abatement; for the plaintiff will not be allowed by varying the form of his action to annul or obviate the rules of legal procedure concerning parties to contracts. 1 Chit. Pl. 87; Max vs. Roberts, 12 East, 94; Weall vs. King, 12 E. 454; Storkfleet vs. Fryer, 2 Strob. 307; Patton vs. Magrath, Rice, 162. On the contrary, in actions ex delicto, generally, and always where a contract is not the gravamen of suit and is merely a matter of inducement or recital, a plaintiff may, at his option, treat the tort committed by two or more persons as either joint or several, 'and accordingly sue all or any or the tortfeasors; and if one of the wrong doers be sued alone, as the tort attaches upon each individually, he cannot plead the nonjoinder of the others in bar or abatement, nor give it in evidence under the general issue. 1 Chit. Pl. 87; Att. Gen. vs. Burgess, Bunb. R. 223; Govett vs. Radnidge, 3 East, 62; 6 Taunt. 29, 35, 42; 6 Jno. 31. Now, in this case, the gist of the action is the negligence of the defendant in the safe keeping of a slave .under his charge, and the contract of hiring is merely matter of preliminary statement to explain ' that the slave was really under the charge of defendant, and proof of any other process by which the charge resulted would have been admissible.

In bis first ground of appeal, defendant also insists, that if there were any negligenee, it was on the part of the. agent of the partners, Moore & Smith, (and not his individual agent,) for the torts of whom he is not separately liable. From the community of interests between partners, each is responsible for the contracts of all or any one of them in the prosecution of the business of the partnership. Jackson was no less the agent of the defendant, because he was also the agent of the partner Moore. Grow, in his treatise on Partnerhip, 184-5, and notes there, and 160, after laying down the doctrine that in such actions as case for malfeasance, the tort,as between partners attaches upon each of the wrong-doers individually, and that one may be sued alone, proceeds: “Nor in such an action, is it material, whether the tort was committed by the partners personally, or by their servant in the prosecution of their business, since, in the latter case, the rule qui facit per alium, facit per se, applies, and renders them and each of them responsible for the consequences.” To the same effect, other text writers on partnership express the doctrine. Story Part. 167; Agency, 308; Collyer Part. b. 3, c. 1, sec. 6, p. 414, and b. 3, c. 6, sec. 3, p. 640; Watson Part. c. 4, p. 235. In Mitchell vs. Tarbutt, 5 T. R. 649, in an action on the case against some of several partners in the ownership of a ship, for negligence in their servant or agent, in running down a ship of plaintiff’s laden with sugar, whereby the sugar was lost, it was held that defendants could not plead in abatement, that there are other partners not sued. Carthew, 171, 294; 7 T. R., 257.

Under this ground, defendant also urged that Jackson was not the agent of the partners, Moore & Smith, but the agent of the Bailroacl Company in the transportation of the slave, when the loss occurred. But after the distinct statement in the report that the slave went back and forth, under the authority of Jackson, on the cars laden with timber, and assisted in loading and unloading them, and after the response of the jury to the inquiry directed to them by the Judge as to Jackson’s agency, it is in vain to suggest a doubt on this point. A similar answer may be given to the fourth ground, suggesting that the misconduct of the agent was wilful, and not within the scope of his agency. The jury have found that the order of the agent, under all the circumstances, amounted to negligence, and occasioned the slave’s death. A principal is not responsible for the wilful trespasses outside of the course of his. employment, of one who is his agent to some extent; but he is bound to provide an agent sufficiently circumspect and skilful for the business entrusted to him, and is liable for the negligence and unskilfulness of his agent within the scope of his agency and course of his employment, even if the agent’s conduct be contrary to his private instructions. Parkerson vs. Wightman, 4 Strob. 363; Topham vs. Roche, 2 Hill 307. On the second ground, this Court approves the instructions of the circuit Judge. The plaintiff was not employed together with Jackson in the business of Moore & Smith; and the case cited, Murray vs. R. R. Co., 1 McM., 385, was not intended to make a slave such a representative of the master in work done by the slave in common with other hirelings, as to constitue the master a co-employee with the hirelings. Some of the propositions in the third ground may be conceded. A slave is still a man, wilful and intelligent, and capable of defeating all proper care on the part of those who have him in charge. A ferryman is held to strict responsibility by our law, yet if a slave in his transit over a ferry wilfully jump from the flat and drown himself, the ferryman is not liable for his value. McDonald vs. Clarke, 4 McC. 223. No bailee of slaves can be considered liable for their loss, where it is the result of their own heady misconduct or negligence. Mikell vs. Mikell, 5 Rich. Eq. 220. Nor would the bailee be liable where the negligence of the slave efficiently contributes to his own destruction, although there may have been negligence on the part of some other agent sui juris of the bailee. Richardson vs. W. M. R. R. Co., 8 Rich. 120. But the appellant, by the verdict of the jury, which must be interpreted as a finding against the fact of the slave’s negligence, is precluded from the application of these principles. Some complaint is made, that the Judge failed to instruct the jury fully on these doctrines, but no erroneous instruction is imputed to him, nor is it pretended that any special demand or request was made to him to express his opinion on this point. The extent of his charge must depend always in large measure on the discretion of the judge; and in the present instance, there was nothing or little to evoke the instruction omitted. What negligence can be fairly attributed to the slave for getting off the train when it stopped, or for going to sleep when the stoppage was long ?

Ordered that the motion for new trial be refused.

O’Neall, O, J., concurred.

Motion refusedf.  