
    Mitchell v. Mims, Adm’r.
    It is unnecessary \o consider the question whether the common-law doctrine, that where a felony bus been committed it will merge the civil action, is applicable- here to (lie felonious homicide of a slave. Although there are eases in other States of the Union in which tiie contrary appears to have been held, yet we incline to think the better opinion is that it is not applicable.
    There may be such want of proper care and diligence, or even of humane conduct in the treatment of a slave, as will render the hirer responsible to the owner in ease of loss by death, without the commission of a felony or even a willful trespass. (Note 1.)
    
      The general rule is that the principal is responsible civilly for the act* of his agent, but not criminally, unless done under his express authority. The principal is responsible for the negligent, but not, in general, for the criminal conduct of his agent.
    Appeal from Colorado. This was an action brought by Mims in his lifetime to recover of Mitchell the value of a negro girl aud her hire. After the case was remanded to the District Court by tiie judgment of this court at a former term, (1 Tex. It., 443,) the parties amended their pleadings. The defense relied on at tlie trial was that the negro had died, by reason of which tlie defendant was unable to restore her to the plaintiff.
    Tlie evidence introduced on tlie one side to prove tlie death of the negro, and on tiie other to prove that if she had come to her deatii it was in consequence of tlie negligence and fault of the defendant, was circumstantial. There was a verdict for tlie plaintiff, which was set aside; a new trial granted ; a second verdict and judgment thereon for tiie plaintiff, aud tiie defendant appealed.
    
      J. Rivers, for appellant.
    I. The first point to which the attention of the court will be called is as to tlie sufficiency of tlie demurrer of tlie defendant to the petition and amended petition of the plaintiff. Tlie. petition alleges a crime that, if true, would subject the defendant to the punishment inflicted for the crime of murder. The doctrine that a trespass is .merged in tlie felony is well established. Tlie defendant should first have been tried for tlie felony before a suit could be sustained. (1 Starlde Ev., 70; 4 Greenl. It., 104; 4 M. Ilamp. R., 230; 3 Greenl. R., 458; 2 Starkie Ev., 818.)
    II. If tlie negro died without any default of defendant lie cannot he held liable for the non-delivery. If there was carelessness on tiie part of defendant in sending tlie girl home lie was excused by the permission and authority of tlie master; and if the jury found their verdict on the ground that tlie slave was not dead tlie finding was clearly against evidence. And if the finding was on the cruel and inhuman treatment there was no evidence to support it.
    IV. H, Hunger, for appellee.
    I. Tiie question of tlie merger of the civil remedy in the felony could not be of any importance in this case even if it was law, the jury evidently having found upon the ground that it was not shown by the testimony that the negro was dead.
    II. In this case there has been two verdicts for the plaintiff, and it is not presumable that tlie court will reverse the finding of the jury, especially as the plaintiff has fully made out his case by positive testimony, and the defense, at best, depends upon circumstantial testimony, the weight of which is properly to be considered by a jury.
   Wheeler, J.

It is a sufficient answer to the first branch of the argument of the counsel for the appellant that there was no evidence which tended in any degree to inculpate the defendant in tlie commission of a felony. It is unnecessary, therefore, to consider the question whether the common-law doctrine, that where a felony has been committed it will merge tlie civil action, is applicable here to tlie felonious homicide of a slave. Although there are cases in other States of the Union in which the contrary appears to have been held, yet we incline to think the better opinion is that it is not applicable. It is unnecessary, however, at present to decide that question.

The argument assumes that any improper treatment of a character to attach liability to tiie defendant, and which may have resulted in the death of the negro, must of necessity amount to a felonious homicide. This, I apprehend, is a mistake. There may have been such a want of proper care and diligence, or even of humane conduct in the treatment of the negro, as would render tho hirer responsible to the owner in case of her loss by death, without the commission of a felony or even a willful trespass.

Note 1. — Mims v. Mitchell, 1 T., 443 ; Sims & Smith v. Chance, 7 T., 561; Mills v. Ashe, 16 T., 295; Hobinson.-y. Varnell, 16 T., 382; Willis v. Harris, 26 T., 136; Browne v. Johnson, 29 T., 40.

Tiie evidence relied on to show a want of humane and proper treatment iiad reference solely to the conduct of tiie overseer of tiie defendant while the negro was iu the service of the latter. And tiie general rule is that tho principal is responsible civilly for tiie acts of his agent, but not criminally, unless done under his express authority. The principal is responsible for tiie negligent, but not, in general, for the criminal conduct of his agent. There was no evidence of any act which would amount to a crime or a willful trespass on the part of either principal or agent.

The questions which the jury wore required to decide under tho evidence in the case were, whether the treatment of the neg'ro had been such as a prudent and humane master would observe towards his own slave, and whether tho loss of the negro liad been occasioned by the want of ordinary care and diligence on the part of tiie defendant.

There is little doubt that the negro came to her death while on her way from the residence of the defendant to that of the plaintiff, some miles distant, whither she had been directed to be sent by tiie defendant; but from what canse does not, with certainty, appear; whether in consequence of tiie negligence or fault of tiie defendant was to be determined by the jury from tiie facts disclosed in evidence. Tiie questions of fact appear to have been fairly submitted to them under the charge of the court. Tiie evidence would, perhaps, have warranted a conclusion different from that drawn by the jury. But it admitted of either one of two, and it was for them to weigh the evidence, and deduce that conclusion which seemed to them most reasonable and probable from the facts in evidence before them. It cauuot be said that the couclusiou they did so deduce was contrary to evidence. And we do not think tiie present, a ease in which, especially alter a second finding for tiie plaintiff, we are authorized to disturb the verdict, though tiie evidence he not of ail entirely satisfactory character.

The judgment is therefore affirmed.

Judgment affirmed.  