Lindsay v. Griffin , 22 Ala. 629 ( 1853 )

PHELAN, J.

The action is trespass vi et armis.

It is a well settled principle, that in the action of trespass, which is an action for the redress of injuries proceeding from unlawful force, in which force and injury are the gist of the action, those persons only are answerable, by whom, or under whose direction, or with whose approbation, the unlawful force is applied. According to this principle, a master is not liable in trespass vi et armis for injuries done by his servant, which are wilful on the part of the servant, and of which the master is ignorant, although done in the course of the master’s business. If injuries are done by the servant in the course of the master’s business, which result from negligence or want of proper care or skill on the part of the servant, the master will be liable, it is true, but only in an action on the case; for there the gist of the action is the negligence of the servant, and for that the master is lawfully liable, although not for the wilful torts of his servant. The master is responsible for the manner, as to care and skill, with which his servants execute his business; and hence it is his duty to employ none but such as are careful and competent in their particular calling; but for the unlawful purposes outside of his service, and the acts proceeding from such purposes on the part of his servants, if he does not know of, or in any manner participate in them, he is not responsible. We come back to the principle, that no man can be sued in trespass vi et armis, but for an injury which is the immediate result of some unlawful force, and that unlawful force exerted either by himself, or those who acted by his command, or at least with his consent. Blackburn v. Baker, 1 Ala. 173; 1 Smith’s Leading Cases, 219, b.

In view of the evidence in the case, and the foregoing principles, it is manifest that the court erred, both in the charge given, and the refusal to charge as requested by defendant below.

Let the judgment be reversed, and the cause remanded.