
    
      J. B. McDaniel vs. N. Emanuel.
    
    The owners of a boat are not liable for the loss of a slave employed as one of the boat hands, unless the loss was occasioned by. the wilful misconduct or culpable negligence of the captain.
    Where the captain of a boat uses a slave as a boat hand, without the consent of his master, the owners of the boat will be liable for his loss, even though it happened without any misconduct or negligence on the part of the captain.
    The captain of a boat is the agent of the owners, and they are responsible for his acts.
    
      Before Butler, J. at Georgetown, Fall Term, 1845.
    This was an action on the case to recover damages from the defendant, who was one of a company owning the steamboat Utility. The allegation was, that the plaintiff’s negro, Jack, was lost on the boat, by the negligence of the captain; and that the defendant was liable as a common carrier. The Utility was employed in running-on the Peedee river, between Georgetown and Cheraw.
    The presiding Judge, in his report, stated that he charged the jury as follows :
    
      “ It seemed to me that the following state of facts was established by the evidence, and presents the legal principles which must govern the case. It appeared that Waterman lived in Georgetown, and, as the shipping agent of the boat, was authorized to employ and discharge its hands ; .and that, in pursuance of his authority, he had employed Jack as one of the crew, by the trip ; that he had received peremptory instructions from the plaintiff to discharge and send Jack home, when the boat arrived at Georgetown ; that Jack was informed of the directions of his master, and was told not to go on board the boat again, as one of its hands — whereupon, Jack asked leave of Waterman to go as far as his master’s place, fifteen miles off, on the boat, for the purpose of carrying more conveniently his box and luggage ; and that Waterman consented that he should do so, as a mere favor, and without any undertanding that Jack ór his master was to pay passage money. These facts, I thought, must have been brought to the knowledge of the master of the boat. This was an inference which I drew, rather from the circumstances attending the trans•action as they were passing, than from any direct proof. When Jack went on the boat again, he was in the custody, and under the control, of the captain, as the agent of the boat, to carry him to his place of destination. It appeared further, that Jack had some reluctence to quit the service of the boat, from his expressions in the hearing of the captain. Instead of stopping at the plaintiff's place, Jack went on up the river, acting as one of the crew, by the consent of the captain. At Mar’s Bluff, the boat touched at the landing, and before setting off again, one of the hands made his escape without the knowledge of the captain. After going some distance up the river, the captain ordered the boat to return, and in the manoeuvre to do so, Jack was knocked overboard and drowned — he and the captain both being much excited by spirits at the time.
    “ Taking this view of the facts, I was of opinion that the company was liable for the loss of Jack, even if it should appear that his death .resulted from one of the ordinary perils incident to the navigation of the boat, and without any actual fault on the part of the captain at the time the catastrophe occurred, upon the ground that Jack had been used by the agent of the company, in a way different from the understanding of Waterman, and in opposition to the instructions of his master.
    
      “ I said, however, that a different view might be taken of the case. If Waterman had not effectually discharged Jack from the service of the boat, so as to bring that fact home to the knowledge of the captain, the latter might well regard him as one of the boat’s crew; and, as such, the negro was to be regarded in the service of the company from the time he left Georgetown. If this view of the case was to prevail, I charged the jury that the company could not be held liable for the loss of Jack, unless it resulted from some wilful misconduct of the captain, or such as should be regarded in the light of cressa negligentia ; and here I brought to the view of the jury the immediate circumstances attending the death of the negro. The captain had a right to order the boat to be turned back, and Jack was bound to obey his order — and whether the ma-noeuvre was conducted with skill or not, on the part of the captain, could make no difference, as the negro was bound to run all the hazards of his employment, from orders given in good faith, and by an officer competent at the time the company employed him. The censurable part of the captain’s conduct was in getting drunk himself, and suffering Jack to get drunk, thereby voluntarily bringing about a state of things not only to increase the hazard of the employment, but to prevent the means of relief. For, according to the weight of evidence, when Jack fell overboard he might possibly have been rescued by prompt assistance, yet no effort was made to take him out of the water. Humanity, justice, and a regard to the rights of the owner, required that the body should, have been taken out, and at least inspected, if circumstances rendered it practicable ; and of this there was no evidence. These notices I brought to the jury’s view, that they might decide whether there was such gross negligence as to render the company liable. I left it to them to decide for themselves, as to the degree of negligence, and adverted to all the evidence given in favor of the captain’s conduct on the occasion.”
    The jury rendered a verdict for the plaintiff for the value of the negro.
    The defendant appealed, and now moved for a new trial, on the following grounds.
    1st. Because, from the moment the contract for the hire of Jack was put an end to by Mr. Waterman, the agent of the boat,-the negro was in the possession of the plaintiff, and all of Waterman’s subsequent acts in relation to the negro, were either done upon his own responsibility, or as the plaintiff’s agent; so that the defendant cannot be held responsible for his loss, unless he had been sent on board of the boat as a passenger, and the captain expressly instructed to land him at his master’s residence.
    2d. That if Waterman discharged the negro, with the qualification that he should have a passage on the boat as a gratuity, after the express instructions of his master that he should not be again sent on board of the boat, he acted solely upon his own responsibility, and is personally liable to the plaintiff for his loss.
    3d. That his Honor erred in charging the jury, that when Jack went on board of the boat, be was in the possession of the captain,- as the agent of the boat.
    4th. That if the captain took the negro on board of the' boat, with a knowledge that the contract of hiring had terminated, he became personally liable to the plaintiff as a trespasser.
    5th. That his Honor charged the jury, that it was cres-sa negligenlia on the part of the agent of the boat, in not attempting to look after the negro after he had been knocked overboard. Whereas, it was proved by the testimony of a witness who was on board of the boat, with every opportunity for observation, that when the accident was discovered, every exertion was made to save him.
    
      Munro, for the motion.
    
      Wilkinson, contra.
   Curia, per RichardsoN, J.

This case has been ably discussed by the defendant’s counsel. But after the finding of the jury, it lies within a very narrow compass. Either Jack was on board the boat as a hired boat hand, or he had been discharged, but was still retained by the captain, and used as a boat hand, against the will and consent of his owner, the plaintiff, while Jack was a mere inmate or passenger. The law, as applicable to the former or the latter position of Jack in the boat, was fully laid down by the Judge. If the jury should find that he was still a hired boat hand, then he had to run the usual risk of a boatman, and nothing but. the wilful misconduct or culpable negligence of the captain, could render the owners liable for the loss of Jack.

This was the first proposition of the Judge’s charge to the jury, and is plainly the law. It was fully discussed and recognized by the court in the case of Murray vs. The Rail Road Company, 1 McM. 385, and the proper distinction pointed out, with full consideration of the whole subject. The other part of the charge is equally plain. The jury were to decide, first, if Jack had been discharged as a hired boat hand ; if so, secondly, whether the captain did not. again retain and use Jack as a boat hand, without the consent of his owner, and when Jack had become a passenger. If he was so again retained and used, then the defendant was liable for the loss of Jack, even without wilful misconduct or culpable negligence on the part of the captain. Such unqualified liability, for the consequence of interfering with and using the property of another, without his consent, was decided in the case of Wright vs. Gray, 2 Bay, 464. That was the case of a negro boy, whom the defendant, Gray, induced to ride a race, and being killed, Gray was held liable, Other cases of the kind have occurred, and this rule of strict accountability applies emphatically to the unauthorized use of slaves. No other question remains to be decided, unless it be seriously questioned whether the owners of the boat are liable for the acts of their captain, done in his office and occupation as master of the boat. But such liability, by principles of law, is so well recognized in our own cases of Snee vs, Trice, 2 Bay, 344; Topham vs. Roche, 2 Hill, 307, and Wingis vs. Smith, 3 McC. 400, as to preclude the necessity of any discussion on this head ; “ qui facit per aliimi, facit per se.” The rational principle is plainly this; whoever invites general confidence in his agent, placed in a public employment for his own interest, makes himself security for the proper performance of the duties undertaken by, and confided to, such agent. The motion is dismissed on all the grounds of appeal.

O’Neall, Evans, Butler, Wardlaw and Frost, JJ. concurred,  