AMOS SCUDDER, plaintiff in error, vs. WYLLY WOODBRIDGE,

defendant in error.

SUPREME COURT OF GEORGIA

1 Ga. 195 (1846)

OPINION: By the Court.--Lumpkin, Judge.

Wylly Woodbridge brought an action on the case against Amos Scudder, to recover the value of a negro boy, by the name of Ned, a carpenter, killed on board the Ivanhoe, owned by the defendant. It was alleged in the declaration that the property was lost by the carelessness and mismanagement of the captain of the boat, who was employed by the owner. This boy had been hired as a carpenter to make the trip from Savannah to St. Mary's, and becoming entangled in the water-wheel, in aiding to get the boat off, he was drowned. Judge Fleming, before whom the cause was tried in Chatham county, charged the jury, that if they found that the death of the slave was occasioned by the negligence or want of skill in the officers of the Ivanhoe, in the employment of Amos Scudder, that he was liable for the loss accruing from such negligence or want of skill. The jury returned a verdict for five hundred dollars. The defendant below excepted to the charge of the court, and now assigns for error that the instruction to the jury was wrong, and that the plaintiff in error is not liable for any carelessness of his agents to those in his employ.

The verdict of the jury having established the fact that the death of the slave was produced by the negligence or want of skill of the officers on board the boat, I shall not pretend to scrutinize the testimony, but address myself at once to the inquiry, whether, conceding the fact as found by the verdict, Scudder is liable to Woodbridge? This question is new in our State, and well deserves the gravest consideration.

The general doctrine, as contended for by counsel for plaintiff in error, may be correct. It is distinctly laid down in Story on Agency, and other elementary writers, and fully sustained by the adjudications adduced from South Carolina, Massachusetts, New York and England.--1 McMullan 385; 4 Met. 49; 6 Hill 592; Priestly vs. Fowler, 3 Mees. and Welsb. And we are disposed to recognize and adopt it, with the cautions, limitations and restrictions in those cases. But interest to the owner, and humanity to the slave, forbid its application to any other than free white agents. Indeed, it cannot be extended to slaves, ex necessitate rei. The argument upon which the decisions referred to mainly rest is, that public policy requires that each person engaged on steamboats and railroads should see that every other person employed in the same service does his duty with the utmost care and vigilance; that every hand is qualified for his place, and that everything connected with the line is in good order. Moreover, it is urged, that the want of recourse on the principal will not only make each agent more careful himself, but induce him to stimulate others to like diligence. Can any of these considerations apply to slaves? They dare not interfere with the business of others. They would be instantly chastised for their impertinence. It is true that the owner, or employer, of a slave is restrained by the Penal Code from inflicting on him cruel, unnecessary and excessive punishment; and that all others are forbidden to beat, whip or wound them, without sufficient cause or provocation. But can any one doubt that if this unfortunate boy, although shipped as a carpenter, had been ordered by the captain to perform the perilous service in which he lost his life, and he had refused or remonstrated, that he would have received prompt correction? and that on the trial on a bill of indictment for a misdemeanor, his conduct would have been deemed a sufficient justification for the supposed offense? No! slaves dare not intermeddle with those around, embarked in the same enterprise with themselves. Neither can they testify against their misconduct. Neither can they exercise the salutary discretion, left to free white agents, of quitting the employment when matters are mismanaged, or portend evil. Whether engaged as carpenters, bricklayers or blacksmiths--as ferrymen, wagoners, patroons or private hands, in boats or vessels in the coasting or river navigation, on railroads, or any other avocation--they have nothing to do but silently serve out their appointed time, and take their lot in the mean while in submitting to whatever risks and dangers are incident to the employment. Bound to fidelity themselves they do not, and cannot act as securities, either for the care or competency of others. And what can the master know of the condition of the vessel, road, work or machinery, where his servant is employed, or of the skill or prudence of the persons associated with him? No two conditions can be more different than these two classes of agents: namely, slaves and free white citizens; and it would be strange and extraordinary indeed if the same principle should apply to both.

Again: a large portion of the employees at the South are either slaves or free persons of color, wholly irresponsible, civiliter, for their neglect or malfeasance. The engineer on the Ivanhoe was a colored man. Had the accident been attributable to his mismanagement, to whom should Woodbridge have looked for redress? But we think it needless to multiply reasons upon a point so palpable. There is one view alone which would be conclusive with the court. The restriction of this rule is indispensable to the welfare of the slave. In almost every occupation, requiring combined effort, the employer necessarily intrusts it to a variety of agents. Many of those are destitute of principle, and bankrupt in fortune. Once let it be promulgated that the owner of negroes hired to the numerous navigation, railroad, mining and manufacturing companies which dot the whole country, and are rapidly increasing--I repeat, that for any injury done to this species of property, let it be understood and settled that the employer is not liable, but that the owner must look for compensation to the coservant who occasioned the mischief, and I hesitate not to affirm, that the life of no hired slave would be safe. As it is, the guards thrown around this class of our population are sufficiently few and feeble. We are altogether disinclined to lessen their number or weaken their force. We are, therefore, cordially confidently and unanimously agreed, and so adjudge, that the judgment below be affirmed, with costs