The Representative. (Galveston, Tex.), Vol. 1, No. 19, Ed. 1 Saturday, April 13, 1872 Page: 1 of 4
four pages : ill. ; page 13 x 9 in. Digitized from 35 mm. microfilm.View a full description of this newspaper.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
■''5/<*l> ^
j£Aa 5 r. o <a y&cs&v.
(S-C6./83V ,\
" EG IJALITY BEFOB E THE LA W."
^., " ,—
YOL. I.
GALVESTON, TEXAS, SATURDAY, APRIL 13, 1872.
NO. 19.
Cff §ttpnsfttMk
RICHARD NELSON,
EDITOR AND PROPRIETOR.
Office: Twenty-fourth Street,
Between Market and Postoffice Sts.
SATES or SUBSCRIPTION.
One copy one year: -.$3 00
Six montlis, in advance ----- - 1
BATES OF ADVERTISEMENTS.
SyUAKE
1 MO.
2 MOS
'3 MOS
6 MOS
12 MOS
One
$ 4 00
f 6 00
$ f 50
#12 00
|20 00
Twt
8 00
12 00
15 00
25 00
i,40 00
Three...
12 00
18 00
22 00
37 00
60 00
Fear
16 00
24 00
30 00
50 00
80 Oo
Five
20 00
30 00
37 00
65 00
100 00
Ten
35 00
65 00
75 00
120 00
175 00
SUPREME CODET-ApUTera, 1871,
\VM. F. REDDING and JULIA D. his Wife.
1 ' . ' ' 1 " VH.
The South Carolina Rjulroad Company. 5
opinion.
■ ' i; ' ') t *,(]■.• • ;
. Wright, A. J, The action was
brought by Reddiug and (?$ife,
the plaintiff^ to recovor daana-r
ges for an injury sustained by
the wife in the passenger saloon
of the defendant. The facts of
the case are as follows : While
the:wife, on the evening of Feb.,
1870, was sitting at the depot of
the defendant in Charleston, in
the parlor assigned for lady pas-
sengers, awaiting the departure
of the train for Columbia, which
she proposed to take, one Wollen,
assuming to have charge of the
said roopi, as the servant of the
defendant, informed her that he
of the parlor; and, on her refusi
to leave,, he seized and dragged
her out with violence—throwing
her on her face to the floor. About
a month before, the same man
had ordered her out of the par-
lor, saying that his instructions
were to keep negroes out# and,
on being told by her that she
was not a negro, he apologized,
and further interference ceased.
Martin, who had charge of the
whole premises, constituting the
depot, testified: " That the first
thing Wollen was employed for
was to attend the ladies' room,
to keep it clean, sweep it out,
empty the chambers, and such
things. That this was his only
employment; and orders had,
before that time, been given to
make no distinction at all'*; mean-
ing between white and colored
persons. Wollen was discharged
two or three months after the
occurrence. Upon the plaintiffs'
closing, the defendant moved for
a non-suit, on the grounds:
"That Charles Wollen was not
acting within the scope of any
employment or agency, direct or
indirect, when he excluded plain-
tiff from the saloon, but was ac-
ting without authority, beyond
his legitimate employment, and
in violation of the instructions
and wishes of the defendant ex-
tended to its proper agents; and
that, upon the testimony, the act
was the tort of Charles Wollen,
for which he is responsible, and
not the Company."
The motion was granted, and
the plaintiffs seek, by appeal to
this Court, to reverse it. The
relation of master and servant
creates rights and obligations
which are well defined in the
books, not only as between them-
selves, but as between themselves
and third persons. Perhaps, in
regard to those last, they are no
better or more distinctly stated
than in Smith on Master and
Servant, 151-'2.
A master is ordinarily liable to
answer in a civil suit for the
tortious or wrongful act of liis
servant, if those acts are done in
the course of his employment in
his masters service.; The maxim
is applicable to sucli cases, being
respondeat superior, and that be;
fore alluded to, qui facit per
alium facit per se. This rule,, with
some few exceptions, is of uni-
versal application, whether negli-
gent, fraudulent, or deceitful ;
or, even if it be an act of positive
malfeasance or misconduct, if it
be done in the course of his em-
ployment, his master is responsi-
ble for it—civiliter to third per-
sons; and it makes no difference
that the master did not author-
ize, or even know of the servant's
act or neglect; for, even if he
disapproved of, or forbade it. he
is equally liable, if the acr be
done in the course of the servant's
employment." 1 '
' '' :" ■ ) : i -
It would be a difficult under-
taking to adduce a single case
where the ^master was not held
bound for the tortious acts of
his servant, done in the cjpurse
of his employment. That it was
not authorize*!, or even if it had
been fordidden, does not affect
the right of redress.against the'
master by a party injured by the
unauthorized or forbidden, >a$,
for the consequence to 't^ie t|urdj
party is the same, and is. .t^ bg
attributed to the fact that the
master has placed the servant in
a position where, he may dp un-,
authorized acts. Onwhat prin-
ciple of fairness could it be con-
tended that either the error, or
folly of employing an incompe-
tent or careless servant, jShipuld
bring damage to a stranger, while
the master, who put him in a po-
sition where he might commit
the wrong, should be free from
all obligation to respond to the
injury ? The appointment of such
improper person by the master
induced the wrong, and if it was
committed in the course of his
employment, that is, while the
relation bf master and servant
actually existed in the particular
service in the discharge of which
the servant was engaged, the
master is held to answer He
cannot be excused because he
did not know of it or disapproved
of it, or even had forbidden it,
for, notwithstanding his convic-
tion of the impropriety of the
act, as shown by his forbidding
it, he nevertheless was so careless
and negligent, in the selection of
his agent, as to subject the public
to the chance of its infliction.
To confine the liability of the
master only to such acts of his
servant, in the course of his.
employment, as he may have
authorixed, would give to an ir-
responsible agent a license to
commit torts against the persons
of those who, by the nature of
his employment, must be brought
in contact with him, without any
raasonable prospect of pecuniary
redress, and would materially af-
fect the subordination of the
servant so necessary to the main-
tenance of the superior conditibu
which the master holds in Elation
to him. When the! community
deal with a corporation of the
character of this defendant, with
diversified departments, and va-
rious branches of business inci-
dent to the general purpose of
its organization, "public policy
and convenience" require that
they should be responsible for
the acts of commission or omis-
sion by their agents while in the
course of their employment. The
Supreme Court of the United
States, in Philadelphia and Pend-
ing Railroad Company vs. Derby,
Howard 14, 486 has affirmed the
principles which we think appli-
cable to this case, and, though
not necessarily binding on this
Court, yet the clear statement of
the law in the opinion, having in
view the reason on which it rests,
and1 the authorities to which it
refers, recommends it to our
adoption, it was there held
" that the master is iiable for the
tortious act of his servant, when
done in the course of his employ-
ment, although they may be
done in disobedience of the mas-
ter's ordets." The ■>' course of
the employment," in the sease in
which it is used in reguVd to the
duties imposed by the particular
service, is not to be understood
as restricted and confined to thei
prescribed duties set apart, for
the performance of the servant.
Whatever may be incident to the
employment must necessarily be-
long to it. " To attend the ladies'
room" (as Martin, in his exami-
nation in chief, says waq the
duty fpij which Wollen was em-
ployed,) " might iinpty t&at he
was to take charge Or it, or, at
least, to the seating and comfort
of, passengers who might enter;
and this wou|d further imply the
duty 6f putting out improper or
disorderly persons, and prevent-
ing entrance to an intruder^ if,
by error ,of judgment, he should
forcibly and violently eject a/
parar who had a right to be tftere,
br; in like manner, prevent;'kd:
mission to one entitled to'etiter,
would the defendant be eaeused
upon the ground that he,wft& not
acting within.. the SQppe of his
service ¥ Lord Chancellor Cran-
worth, in Marshall vs. Steirart,
(Housfe of Lords,) Eng. IU& 33.,
j$3, 7^ says ; " We must tskke.a
great latitude in,the ^
of what is being engaged in his
employmeriii" ' xMti
willful, on the past
vant, is no excuse for the master,
if done within the course ofhis
employment.
! It was so held, in_Philadelphia
and Reading Railroad Company
vs. Derby, in Weed vs. Panama
Railroad Company, 17 N. Y., 362,
in Limpus vs. London Omnibus
Company, Hurls and Colt, 1, 562,
and in Seymour vs. Greenwood,
Hurls and iSTor, 7,354,
Every apt is willful which is
the result of violation. The
principal proceeds; upon the
ground that the injury, by reason
of the willful act, is to be at-
tributed to the negligence and
want of care in thfe master, in
the selection of an improper ser-
vant, for a particular in charge.
There is a class of cases, where
the act of the servant wsis held
not only willful,,,but malicious*
or done to serve some purpose of
his own, and the master Was' ex-
cused from liability. They are
put upon tre ground, that the
servant was then acting out of
the line of his employment. As
in McManus vs. Crichet, 1 East,
1Q7, when tee servant, in driving
his master's chariot, from malice,
ran it against the chaise of the
plaintiff", in which he was riding,
and from which he was thrown,
and greatly hurt. Kenyon, C.
J., delivering the opinion of the
Court, said:
"Now, when a servant quits
sight of the object for which he
is employed, and' without having
in view his master's orders, pur-
sues that which his own malice
suggests, he no longer acts in
pursuance of the authority given
him, and, according to the doc-
trine of Lord Halt, his master
will not be held answerable for
such acts.''' Sleath vs. Wilson, 9
Carr and Payne, 607, Wilde Serjt
in his argument, said: "The
case of McManus vs. Cricket, is
quiie a different case; then the
servant had a spite against the
the officer, and drove against
him." Evshin, J., said: It is
quite a different case.
It would seem, from the ruling
in Seymour vs. Greenland, 7 Hurl
and kor, 335,, that the English
Courts had, to some extent, modi-
fied the Views expressed in
McManus vs. Crichet. "
If, then, the issue between the
parties before us was determined
by the fact that Wollen was, or
not, acting in the course of his
emploj'ment, the solution of it
was not for the Court, but for the
jury. What was included in the
course of his employment; what
acts or duties the particular ser-
vice demanded of him; what
control he was authorized to ex-
ercise over the passengers wait-
ing in the parlor; how far did
his particular employment, "to
attend the room, to keep it clean,
sweep it but," &c., give him a
right to interfere at all with pas-
sengers, within it; weather having
been in the room a month before
the transaction, a hired servant,
exercising the same authority as
on this occasion, so far as order-;
ing the pontiff from the parlor,
saying, he was ordered by the,
Company to keep negroes out bf
it; all these were circumstances
from which the jury was to deter?
mine whether Wollen w^s, in thq
partieiijar transaction, "in the
course of his employment," after
being instructed by the Court as
to What, in legal contemplation,
was understood by the term.
When, however, the Judge as-
sumed to decide that " Wollen
was not acting within the scope
of any engagement or agency di-
rector indirect, when he exclu-
ded the plaintiff from the saloon,
but was acting without authority,
beyond his legitimate employ-
ment, mid in violation of the in-
structions and wishes of the de-
fendants, extended to its proper
agents, and that, upon the testi-
mony, the act was the tort of
Charles Wollen, for which he Is
responsible,and not the Comany,"
he undertook to decide $n issue
which properly belonged to the
jury.
If there had been no evidence
to sustain the plaintiff's com-
plaint, it would have been within
the legitimate province of the
Judge to have said so, and to
order'the nonsuit. iuM
• Who, however, can read the
testimony, and say that, under
no proper view which the jury
could take of it, could they have
differed from his conclusion 1
Our courts have not been inclined
to grant nonsuits where there was
any evidence offered by the plain-,
tiffs which ; might sustain his
action. Where there has been a
total failure of ' testimony, as in
Brown vs. Erost, 2 Bay, 126, and
Hopkins , vs. . DeGraffeurers, 2
Bay, 241, there was nothing to
leave to the jury, and it was the
duty of the Judge to non-suit;
but, as is said in Rogers vs. Mad-
den, 2 .Bail, 321, the practice of
" ordering a non-suit in vitium,
for defective testimony, is to be
pursued with caution. If a plain-
tiff has any prima facie testimony,
he has the right to the verdict of
a jury upon it."
The motion is granted, and the
order set aside.
Moses, C. J. concurred.
separate opinion.
Willard, A. J. While agree-
ing in the conclusion to which
the majority of the Court has
arrived, I do not deem it requi-
site to resort to the general rule,
that the master is responsible to
third persons for the wrongful
act of his servant, as the ground
of decision. Where there is no
privity between the third person
injured and the master, as it re-
gards the transactions out of
which the injury arose, it is lie
cessary to refer to the rule of
respondeat superior, in order to
make the act of the servant, in
its legal effect, an act of the mas-
ter, and thus connect the latter
with the damage sustained. But
the master is under an obligation
to render a service to such third
persons, either imposed by law or
the contract of the parties, and
the damage sustained is a direct
consequence of a wrong done in
the rendition of such service; the
master is liable for such damage,
notwithstanding the particular
act of the servant, to injure such
third person. The wife of plain-
tiff presented herself to the de-
fendant, a railroad corporation,
as a passenger, to be conveyed
over their railroad, and so far as-
we can know, in conformity with
jthe law, and the reasonable rules
of the defendants, and must be
regarded as entitled to employ
the facilities and accommodations
offered to passengers by defend-
ants.
I The damage claimed is alleged
to have arisen, in part, from the
act of defendant's servat, in eject-
ing her frOma place where she
"ha^. a right tohe, under the rela-
tions she sustained, as a passen-
ger^' to the defendants, and in
part from the degree of violence
employed in the course: of eject-
ing her. It is no answer to such
a demand that the act of the de-
fendants' servant was unauthor-
ised, and willful and malicious
on his part. .•> -
This principle was applied to
the relations of a railroad com-
pany and a passenger, in the case
of Weed vs. Panama Railroad
Company, (17 N. Y., 362,) and is
not affected by what is said in
Dana vs. South Carolina Railroad
Company, (4 Ricli. L., 32f,) of the
effect of willful misconduct on
the part of a servant, as affecting
the relation of the master to third
persons.
■——■—
> SOUTHiEBN MEN AND GRANT.
;• •; ? i.
\
r Why should honest and sensi-
ble Southern men oppose the re-
election of President Grant 1 It
can only be said against him that
he led the armies of the Union
to victory; that he has been
faithful to the construction his
soldiers and his people put upon
the results of the war; that he
has honestly executed all laws
which it was his sworn duty to
execute, and has broken no prom-
ises he made to those to whom he
I owes his elevation. But this is
ja record of manly consistency
ithat even an honorable enemy
1 must admire. He has been the
.executor, not the author, of the
reconstruction poiicy, and as such
has been as kind and magnani-
mous towards the South as he
could be without being untrue
to the Nation. He has simply
been faithful to what he con-
ceives to be the will of a majority
of the nation—nothing more nor
nothing less.
If the Democracy had not dis-
tinctly abandoned its every an-
cient landmark and principle, for
a Democrat to vote for Grant
would be to give up some cher-
ished doctrines. But his party
has formally sacrificed every dis-
tinguishing issue, and proposes
to support for|President some man
who has been a more rabid Re-
publican than Grant, and who will
stand on precisely the same plat-
form. If there is no sincerity in
the profession, our Democratic
friends make of accepting the
situation; if they only promise
to give the colored man political
and civil equality for the purpose
of stealing into power and then
defrauding him of his rights; if
their oaths are only hollow hyp-
ocricy and their solemn pledges
naught but thin air, then and
[Continued on "Fourth Page.]
Upcoming Pages
Here’s what’s next.
Search Inside
This issue can be searched. Note: Results may vary based on the legibility of text within the document.
Matching Search Results
View one place within this issue that match your search.Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Newspaper.
Nelson, Richard. The Representative. (Galveston, Tex.), Vol. 1, No. 19, Ed. 1 Saturday, April 13, 1872, newspaper, April 13, 1872; Galveston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth203079/m1/1/?q=Lamar+University: accessed May 29, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .