Christy v. Price

• Decision Date: 31 May 1842
• Citation: 7 Mo. 430
• Parties: CHRISTY v. PRICE, ADM'R OF FUGATE.
• Court: Missouri Supreme Court

7 Mo. 430

CHRISTY

v.PRICE, ADM'R OF FUGATE.

Supreme Court of Missouri.

May Term, 1842.

ERROR TO ST. LOUIS CIRCUIT COURT.

SPALDING and TIFFANY, for Plaintiff.

BLAIR and GANTT, for Defendant.

NAPTON, J.

The plaintiff in error and one James Dean, executed to Price, the defendant in error, the following instrument.

“We, or either of us, promise to pay to Isaac J. Price, administrator of William C. Fugate, the sum of one hundred and thirty-two dollars, it being for the hire of a negro man named South, for the term of one year from this date, and we bind ourselves not to remove the said negro out of this county, and to furnish him with good clothing, suitable to the season, and give him good medical aid, if sick, and pay doctors' bills, if any, created, and return said negro to Isaac J. Price, on the first day of March next, at the court house door of St. Louis county, with suitable clothing for the season, as witness our hands and seals, this 1st March, 1837.

J. DEAN,

HOWARD F. CHRISTY.”

At the November term, 1839, of the St. Louis Circuit Court, Price filed his declaration against Christy, averring that, whereas, in consideration that the said plaintiff had, on the first day of March, 1837, at the county of St. Louis, at the special instance and request of him, the said defendant, then and there let to him, and delivered to said defendant, and a certain James Dean, a certain negro man, &c., to be worked and used by the said defendant, and the said Dean, for the space of one year. The said defendant undertook and faithfully promised, among other things, that he would take due and proper care of said negro, and would return him at the expiration of a year, to-wit, &c. nevertheless, the said defendant took so little and such bad care of the said negro, &c., that by and through the mere carelessness, recklessness, remissness, negligence, &c., of him the said defendant and of the said Dean, the said negro being, by the said James Dean, with the assent and permission of said defendant, employed and compelled to work in a dangerous and improper situation, to-wit, in a certain sandpit; and afterwards, to-wit, &c., by the caving and falling of the sides of the said sandpit, wherein the said negro man was compelled to work as aforesaid, was crushed, overwhelmed, suffocated, and killed, contrary to the form and effect of the promise and undertaking of the said defendant, to the damage of said plaintiff, &c. The defendant pleaded first, not guilty; second, ne unques administrator; third, said negro was not lost by neglect or want of care of defendant; fourth, that said boy was not employed by said Dean with the assent and permission of said defendant, and compelled, with such permission and assent, to work in a dangerous and improper situation, in manner and form as alleged, &c. Issues were taken upon all these pleas, and each of the issues were found for the plaintiff, and his damages assessed at six hundred dollars. A motion was made for a new trial, on the grounds, that the verdict was against law and evidence, and because the court refused to give proper instructions. There were six instructions asked for on the trial, by the plaintiff in error, but they were all refused. All the instructions except, perhaps, one, appear to have been based on the supposition that the action was trespass on the case; and the court refused the instruction, as it would seem, because, in its opinion, the action was assumpsit on the contract. If the action be case, it is agreed that the instructions were properly refused. The fourth instruction which was asked, and refused was, “That in this action the burthen is on the plaintiff, to prove the neglect and carelessness charged in the declaration, and it is not to be presumed without evidence.”

It will be observed that all the pleas filed in this case were upon the supposition that the declaration was in case, and not assumpsit. Issues were taken to these pleas, and the jury responded to each of the issues, finding the defendant...