Daniel v. Swearengen
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The opinion of the Court was delivered by Moses, C. J.
This was an action on the case for enticing, persuading and. procuring three persons of color, claimed to be the servants of the plaintiff, to leave his employ and engage in that of the defendant. Two of them had been engaged by the plaintiff as farm laborers, and the third, a female, as a domestic and house servant. The verdict of the jury establishes the facts alleged in the complaint, and the exceptions to the judgment are identical with those on which the motion was made in the Court below for a non-suit. They may be comprised in the three following propositions :
1. That the relation of master and servant does not exist in South Carolina; that the employer cannot maintain an action for enticing, or otherwise persuading, or causing a laborer, and especially an agricultural laborer, to leave his service.
2. That a contract between employer and laborer to be valid must be in writing and attested.
*302 3. That in the event of a violation of the contract by either of the parties to it, the statutes of the State provide the only redress.
The relation of master and servant, as it prevailed in this State before emancipation, was not restricted to that which existed between the owner and the slave. While the rights of the master, as against the slave and all others, acquired by and consequent upon his ownership^ were defined and protected by law, another relation was recognized, arising from the employment of one free man by another, known and distinguished as that of master and servant. The statute book is filled with various enactments governing and regulating it, and those which were passed, up to the publication of Brevard’s Digest, may be found collected in a separate chapter of his second volume. It cannot be questioned that an action of the character of the one before us, where the party employed was a free person, was maintainable while slavery actually existed in the State. Is there anything in the change, resulting from its abolition,' which can vary either the rights and obligation which attach to such a contract as between the parties themselves, or those qualities and incidents which must affect third persons having knowledge of it? If the relation existed at common law, and has been heretofore acknowledged in this State, is there not a greater necessity for preserving it? Where the service which was exacted through the existence of slavery can no longer be demanded, and the wants and necessities of the community for labor, both domestic and agricultural, can only be supplied by mutual will and agreement, while the liabilities and obligations between the employer and employee rest on and must be regulated by their contracts, the consequences of the loss of service stipulated to be rendered under it should fall upon those who by their intrusion and interference have induced it. If the employer was left alone to resort to his contract for the injury thus sustained, in most instances his reparation would fall far below the actual damage he has suffered.
It is not necessary to refer to authority to show that an action was maintainable at common law for enticing a servant from the service of his master. To sustain it there must be an actual binding contract of service, and where this exists such an interference by a third person as results in its violation will render him liable to the master, not only for his actual loss, but for such further compensation in the way of damages as may be demanded by the char, acter of the circumstances attending the injury through which the *303 loss was inflicted. It is claimed, however, that if such a relation does exist in this State, it cannot be extended to laborers and must be restricted to domestic servants. We cannot see on what principle such a distinction can rest. From the nature of the service in which the large majority of laborers are engaged in this State, the profit which is to be made from it depends on their employment for the year. The loss of agricultural labor, for even a few days, might often prove of irreparable injury to the crop, and an equal if not greater necessity would seem to exist for extending the rights of the employer which pertain to the relation in which he stands to the domestic servant not only to the farm laborer but the mechanic. The place of the domestic can be more readily supplied, and the loss occasioned by the sudden departure of the farm hand or the mechanic would usually be larger than would follow the absence of the mere employee in house or kitchen work. No such distinction prevails in England. In Hart vs. Aldridge, (1 Cowp., 54,) it was held that trespass on the case lies for enticing away the servants of the plaintiff who worked for him in the capacity of journeymen shoemakers. Lord Mansfield said: “What is the gist of the action?” That the “ defendant had enticed a man away who stood in the relation of servant to the plaintiff, and by whom he was to be benefitted.” Ashton, J., said: “Even supposing the servant did live in his own house, if he were employed to furnish a certain number of shoes for a particular person by a fixed time, and a third person enticed him away, I think an action would lie.” In Gunter vs. Aston et al., (4 J. B. Moore, 12,) the action was sustained in favor of a manufacturer of piano-fortes for enticing his workman from his service. In Lumley vs. Guy, (20 Eng. Rep., 168,) it was held that the action was maintainable at common law against one who had procured a dramatic artiste to break her contract with the plaintiff and depart the service which she was bound to render under it. That the rule of law giving a remedy for enticing away servants is not confined to menial servants, or such as fall within the Statute of Laborers, but extends to all cases where the person is employed to give his exclusive personal service for a given time under the direction of an employer who is injured by the wrongful act.
In our judgment, Section 9 of Chapter CIII of the General Statutes does not require that a contract for service, to be valid and effectual, must be in writing. Either party may require it “to be *304 duly executed before a Trial Justice;” in which event it must be in writing, for it is to be then “read and explained to the parties.” But even if a writing was necessary, it was only for the purpose of allowing either of the parties to avail himself of the remedy allowed to such contracts by the twelfth Section of the same Chapter. Its provisions extend alone to those contracting, and were intended for their protection. The employer was not deprived of any rights he might have against a third person for improperly interfering with those in his service in any way by which it becomes less available or productive to him. But, in any view, the provisions referred to do not take away or impair the power to contract by parol, as it existed at common law, or limit the remedies, for any violation of the contract, to those afforded by the said Sections. There are no negative words which destroy the remedy which existed at common law or restrict it to that provided by the statute. It is only cumulative, and leaves unaffected any remedy to which resort might have been had before its enactment. Although what was said in the opinion of the Court in Burgess vs. Carpenter, (2 S. C., 7,) may be somewhat in conflict with the views which dispose of the case before us, still the decision there may well be sustained upon the material ground assumed by the Justice who delivered it, and referred to in the separate opinion of Mr. Justice Willard. It was, that Henry Burgess did not occupy the relation of servant to the plaintiff, W. R. Burgess; that he was a co-worker with him in the crop, each contributing the means necessary to its production, liable for the losses and entitled to share the profits, if any accrued. This constituted them partners.
The motion is dismissed.
Wright, A. J., and Willard, A. J., concurred.
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