The Cecil Whig. [volume] (Elkton, Md.) 1841-current, 1880-05-29
An Important Decision.
EVAN THOMAS EN ANS
rerSHS
Tun>I,S nANIDSDS


This was an action tried ut the September
term, 1879, of the Circuit Court tor Cecil
county, to recover the value of Il COW, which
was alleged to have been killed through the
negligence of the defendants servant. The
Circuit Court instructed the jury that there
was no evidence of the defendants liability,
and therefore he was entitled to the verdict.
From this decision the plaintiff took an APP
peal to the Court of Appeals, when the Judg-
ment of the Circuit Court was reversed, and
the plaintiff awarded a new trial. AS the
case involves some points interesting to
farmers, we give below the opinion OF the
Court of Appeals. The case was argued
before the Court of Appeals for the plain
tiff, i'll favor of 4 reversal, by Albert Con-
stable, Esq, and for the defendant and in
favor of sustaining the decision of the Cir
cult Court by William S. Evans and George
A. Blake, Esqs. Judge Alvey delivered the
opinion of the Court rs fellows:
"The only substantial question in this
case is, whether the defendant, the present
APPELLEE, is liable for the wrongful act of
his servant, in killing the plaintiffs COW,
while driving her out of the defendant $
corn field.
1t appears in proof that the defendant
was farmer and that his farm adioined
that of one Boulden: that he had employed
on his farm negro Lewis, and two other
negro hands, and that they were employed
for Il period of nine months, to do general
taim, ,cork on the farm; that Oh the day the
plaintiffs COW was killed, the defendant
was away from home, and that the three
negro servants OF hirelings were at work in
the corn field cultivating the corn, when u
herd of cattle, among which was the plain
titf"s cow, broke into the defendants corn
field, where his hirelings were at work
from the adjoining farm belonging to Boul-
den and that upon discovering the cattle
among the corn, the servants Immediately
started to drive them ont, and in doing so,
the said negro Lewis negligently struck the
plaintiffs COW with Il stone, and killed her
before she had left the field"
There was also proof on the part OF the
defendant that he had given no orders in
regard to driving cattle out of the field, and
that he did not know that the cattle were in
the corn until after the COW was killed.
The Court below, at the instance of the
defendant, instructed the jury that there
was no evidence in the cause legally sutfi-
Gent to entitle the plaintiff to recover. 10
this ruling, and the rejection Of the prayers
offered by the plaintiff, the latter excepted.
There is no question rs to whether the re-
lation of master and servant existed be-
tween the defendant and the party doing
the wrongful act complained of; that is con-
ceded. But the question is, whether the
act of driving the COW out of the corntield
was within the scope of the servants EN-
ployment, under the circumstances OF the
case If that act was, either expressly or
by fair implication, embraced within the
employment to do general farm work on
the defendants farm, then, it is clear the
latter is liable for any wrong or negligence
committed by the servant in doing the act
authorized to be done. In one sense, where
there is no express command by the master,
all wrongful acts done by the servant may
be said to be beyond the scope of the au-
thority given; but the liability of the mas
ter is not determined upon any such re-
stricted Interpretation of the authority and
duty of the servant. If the servant be act
ing at the time in the course of his masters
service and for his masters benefit, within
the scope of his employment, then his act,
though wrongful or negligent, is to be treat
ed as that of the master, although no eX-
press command or privity of the master be
shown. This general principles sanctioned
by all the authorities.
Therefore the fact that the master gave
no express direction III regard to driving
the cattle out of the corn field, and did not
know of their being in it until after the
doing the injury complained OF, will not
avail to eXonerate the master, if the servant
was acting in the course of his employment.
Was, then, the servant acting in the
course of his employment? What is eni-
braced as commonly understood in general
farm work:
In the very nature of the employment
,n,l tlnr n,,,l
duties belonging to it, and this rs well
for the protection of the master as third
parties. If, for instance, a servant thus EN-
ployed should see gate open, or panel of
fence down, through which a herd of cattle
might or would likely enter and destroy his
masters grain, we suppose all would say,
that it would be the positive duty of the
servant to close the gate or put up the fence
to prevent the destruction OF the grain: and
if he should pass by and wilfully neglect
such duty, it would constitute cause and 4
sufficient justification for the discharge of
the servant. If that be SO, how much more
imperative the duty, where, as in this case,
i'll the absence of the master, the servant
being in the field at work and seeing 4 herd
of cattle break into the field, and in the act
of destroying the corn, to drive out the cat
tie and thus to save the corn from destruc-
ton? To do such act for the preservation
of the growing crop, must be regarded as
ordinary farm work, and such us every
farmer, employing a servant to do general
farm work, would reasonably contemplate,
and have Il right to expect as matter OF
duty from the servant. The servant, there
fore, was acting in the course of his EN-
ployment in driving out the cattle, and if
he did, while driving them out, commit the
wrong complained of, the master is liable
therefor
Judgment reversed and new trial aW arded.