Rhodes v. Roberts , 1 Stew. 145 ( 1827 )

JUDGE WHITE

delivered the opinion of the Court

As to the form of action for the injury charged, whenever the injury is direct and immediate, whether it proceed from design or negligence, trespass will lie. But where the injury is merely consequential, the remedy must be by action on the case. For the act of a servant, or one in the employment of another, although the servant mav be liable in trespass, the master is not liable in that form of action unless present, directing, advising or en-com aging the act; but if he is present when the act which produces the injuiy is done by the servant,and directs, advises or encourages it, he makes it his own, and as a pr ncipal trespasser, is liable to the party aggrieved in an action of trespass, either jointly with his servant, or separately against himself; and the injury being the result of negligence or want of care, does not exempt him trom liabiiity in this form of action.

'hete the injui y is to the pers- n of the plair.tiff, the amount of damages cannot be measured by any certain and precise standard. The negligence may be very gross and reprehensible, and in all such cases the jiuy may give sm ut money, if in their view the circumstances are such as to require it. Let the judgement be affirmed.

Judge Saffold not sitting.