
    GAILLARDET vs. DEMARIES.
    APPEAL FROM TIÍE PARISri COURT FOR THE PARISÍI AND CITY OF NEW ORLEANS*
    To Tender the employer or hirer of a slave liable for the damage occasioned by him, it must he done through his neglect, while he is actually engaged in the functions or duties intrusted to him.
    Where the damage is done wilfully and wickedly by a slave hired to another, instead of doing it through neglect or unskilfulness, the employer is not liable.
    The employer is however liable for damage occasioned through the neglect, imprudence or unsldlfulnessj of his employee, whether he be a free person or a slave.
    This is an action of damages, in which the plaintiff claims $600, for injury and damages sustained, by the negligent and Unskilful conduct of a slave, in driving a dray against his gig, breaking it to pieces and injuring his servant.
    It appears a slave hired by the defendant, in his employment driving- a dray, and being in-a full trot, ran against the plaintiff’s gig and broke it; doing also serious injury to the servant .driving it.
    The evidence was clear that the damage was occasioned by the neglect and unskilful driving of the drayman, and that he was hired and put in this employment by the defendant. It further appeared that the servant driving the plaintiff’s gig did not belong to him.
    The Parish- Judge assessed the damage done to the gig at $200; the driver not belonging to the plaintiff, he was not entitled to any remuneration for the injury done him.
    The defendant appealed.
    
      Preaux, for the plaintiff.-
    
      Castera fy Pepin, for the defendant and appellant.
   Morphy, ,J.

delivered the opinion of the court.

This suit was brought to recover damages for injury sustained by plaintiff whose gig was upset and considerably damaged by a dray belonging to the defendant. It is alleged that the boy who was driving the dray also belonged to the defendant, and that the accident was the result of his neglect and carelessness. After denying generally the facts alleged; the answer avers that defendant cannot be liable because the slave who occasioned the damage is not his property. There was a judgment below in favor of plaintiff for $200. Defendant appealed.

The evidence shows that the boy who was driving defendant’s dray did not belong to him, but was hired by him from some other person whose name has not been disclosed even on the trial; and that the accident which gives rise to the present claim happened through his neglect and want of proper care and attention.

The defendant contends that the owner is alone responsible for any damages occasioned by a slave ; that as he only hired this slave he is not to answer for such of his acts as may cause injury to others; and we have been referred to those articles of the Louisiana Code which declare the liability of masters for the offences and quasi offences of their slaves, La. Code, arts. 180 and 2300. It appears to us that defendant’s liability in this case rests on grounds altogether distinct from those which are the basis of the responsibility of the owners of slaves under the foregoing provisions of our Code. The liability of the masters of slaves is a consequence of their ownership. . It is one of the burthens of this species of property; it is absolute and exists whether the slave is supposed to be acting under their authority or not; the only difference lies in the extent of this responsibility. If the offence or quasi offence which occasions the injury is committed by the slave without the order of his master, the latter may exonerate himself by surrendering the slave to be sold; while he will be answerable for any amount of damages, if the slave has only acted in obedience to his orders. The provision of law on which plaintiff relies, as applicable to this case, is article 2299 of the Louisiana Code. It provides that “masters and employers are answerable for the damage occasioned by their servants and overseers in the exercise of the functions in which they are emp20yed.” The circumstance of the person employed being a slave instead of a free person, cannot, in our opinion, vary or change the responsibility of the employer; for it rests on the ground of express or implied authority from him, hut in order to hold the employer liable, the damage must he done through the neglect of the slave hired while he is actually engaged in the functions or duties intrusted to him. If the negro in this case had wilfully and wickedly run his dray against plaintiff’s gig, instead of doing it through neglect or unskilfulness, defendant could not have been made liable, because the damage could not he said to have been done in the course of his employment or under any implied authority from him. When the acts of an agent which do injury to others are wilful and deliberate, he must answer for his own misbehaviour. If he be a slave against whom no action can lie, the law substitutes for his responsibility that of his master; but when the damage has been done by ther_ imprudence, unsldlfulness or ignorance of a person employed by.another to do a certain thing, the employer is responsible whether the agent is a free person or a slave. In this case the plaintiff had, we think, an action against both the owner and employer of the slave. Had defendant thought proper to let plaintiff know the name of the person from whom he hired this slave, he might perhaps have saved himself the trouble and expense of this suit; not having done so, he cannot complain if he alone is looked to for indemnity. The injury sustained by plaintiff being’ proved to have happened through the neglect and carelessness of the boy while he was driving a dray by order and for account of defendant, the latter is clearly liable under article 3399 of the Louisiana Code. As to the injury suffered by the negro who drove the plaintiff’s gig, damages were rightly disallowed, because it is in evidence that he does not belong to plaintiff.

To render the employer or hirer of a slave liable for the damage occasioned by him, must be done through his neglect, while he is actually engaged in the functions or duties intrusted to him*

Where the damage is done wilfully and ■wickedly by a slave hired to another, instead of doing it thro’ neglect or un-skilfulness, the employer is not liable.

The employer is however liable for damage occasioned through the neglect, imprudence or un-skilfulness, of his employee, whether he be a free person or a slave.

The judgment of the Parish Court is therefore affirmed with costs.  