Ewing v. Thompson

• Decision Date: 31 January 1850
• Citation: 13 Mo. 132
• Parties: EWING v. THOMPSON.
• Court: Missouri Supreme Court

13 Mo. 132

EWING

v.THOMPSON.

Supreme Court of Missouri.

January Term, 1850.

APPEAL FROM CLAY CIRCUIT COURT.

The record in this cause presents the following material fact. In September, 1848, the appellant was the owner of a slave named Anderson, and the appellee was the owner of a slave named Henry. Anderson was by law subject to work on a certain road district in Clay county, of which one Edward M. Samuel was overseer. The said overseer had notified the appellant to send his said slave to labor on said road, which he accordingly did, both on Friday and Saturday. The appellant, being over forty-five years of age, was not subject to work on roads, and was not present on either day. About eleven o'clock in the forenoon of Saturday, the slave Anderson, as well as other laborers, were duly discharged from said road, at some point between the town of Liberty and the residence of the appellant. The road in question extends from said town by the house of the appellant to the steamboat landing of Major Turnham. The next that is seen of the slave Andorson, is at said landing, on the evening of the last mentioned day, and about twilight, he and the slave of the appellee engaged in a quarrel and fight, which resulted in the death of the latter. Thompson sues Ewing for the recovery of damages alleged to have been sustained in the premises. His declaration is in trespass on the case, and is conceived in analogy to actions brought against owners, for injuries done by their animals of a dangerous and mischievous disposition. Ewing pleaded the statutory general issue. Upon the trial, the plaintiff below introduced testimony conducing to show that the slave Anderson was of a dangerous and murderous disposition, and that, with a knowledge of such disposition, the defendant below had negligently and unlawfully permitted said slave to go at large without his possession and beyond his control, and that while so at large he had committed the wrong complained of in the declaration. The defendant below then introduced evidence conducing to show that his said slave was not of the disposition imputed to him, and generally rebutting the former evidence. After the evidence was closed on both sides, the court gave to the jury the following instructions: 2. If they believe from the testimony, that the boy, Anderson, the property of the defendant, was in the habit of becoming intoxicated, and drinking intoxicating liquors, and when so intoxicated, was of a quarrelsome, murderous and dangerous disposition, and defendant negligently suffered said boy to go off his farm, from under his immediate supervision or control, or under the immediate supervision or control of any one else; and whilst so abroad he became intoxicated, and assaulted and killed a negro boy, the property of the plaintiff, and defendant knew of such habit of the boy Anderson beforchand, they will find for the plaintiff the value of the boy killed. 4. If the jury believe from the evidence, that the defendant kept a negro boy, Anderson, the property of the defendant, that said boy was in the habit of getting intoxicated, and when intoxicated was of a quarrelsome and murderous disposition, and the defendant knew the fact, and negligently suffered him to leave his farm; and that said boy went to Turnham's landing on the Missouri river on Saturday, became in toxicated, assaulted and killed a negro boy, the property of the plaintiff. then they will find for the plaintiff the value of the boy killed.

The defendant below then prayed the court to instruct the jury, as follows: 1. That before the plaintiff can recover in this cause, he must prove the following four facts, to-wit: first, that the defendant's slave in question was of a murderous disposition: second, that such murderous disposition was known to the defendant: third, that with such knowledge the defendant unlawfully and negligently permitted said slave to go at large: and fourth, that whilst so unlawfully and negligently at large, the said slave committed the injury complained of in the plaintiff's declaration. The proof of one or any of said facts is not sufficient to authorize a recovery; for such purpose all must be proved; and if the plaintiff has failed to prove any or either of such facts to the satisfaction of the jury, then they will find for the defendant. 2. That even a general, unlawful and negligent permission to go at large, will not, of itself, authorize the jury to find for the plaintiff. Before he is entitled to recover, he must show an unlawful and negligent permission to said slave to go at large at the time of the supposed injury; and if the plaintiff has failed to prove that the defendant unlawfully and negligently permitted said slave to go at large at such time, and further, that such injury resulted from such permission, then they will find for the defendant. 3. That if the jury believe from the evidence, that on the day of the alleged injury, the defendant was required by law to send his said slave to labor on a public road or highway, and that such injury was done whilst said slave was absent from the defendant for that purpose, then the defendant was but complying with the requirement of law; and from such compliance, the jury have no right to infer that he unlawfully or negligently permitted said slave to go at large on that day. 4. That if the alleged injury was done by the defendant's slave, in question, while he was absent from the defendant for the purpose of laboring on a public road or highway, in obedience to the requirement of law, then, for any wrongs done by said slave, while so absent, the defendant is not liable. 5. That unless the jury find from the evidence that the injury complained of in this cause was committed by the slave in question, under the authority, or with the knowledge and approbation of the defendant, then they will find for the defendant. 6. That the law fixing the liability of owners for injuries done by their animals, either of a wild or tame nature, is not applicable to this case, in which it is sought to make the defendant, who is master, consequentially liable for an injury supposed to have been done by his slave. The relations of master and slave are analogous to those of master and servant at the common law, rather than to those of owner and beast, and the master cannot be held liable for wrongs done by his slave otherwise than upon the ground of an authority express or implied, except where a remedy is given against the master by statute. This suit is not brought upon the ground of an authority express or implied. The jury are therefore bound, in any aspect of this case to find for the defendant. 7. That although the jury may believe from the evidence, that other persons had seen the slave, Anderson in circumstances, and known him to be guilty of acts indicating a quarrelsome and murderous disposition, yet, unless they also find from the evidence, that the defendant knew there was dangar to the rights of others, in permitting Anderson to leave his premises and that he was disposed to commit murder and like crimes, when away from home, the defendant is not liable for the act complained of. 8. That such acts and conduct of the slave, Anderson, detailed in proof, as were never communicated to or known by the defendant and such rumors and reports about said slave as never came to defendant's knowledge, cannot affect the defendant in this trial.

The fourth, in this series of instructions, was given as prayed, and the others refused.

The court, of his own motion, then instructed the jury as follows: 1. That before the plaintiff can recover in this cause, he must prove the following four facts, to wit: first, that the slave of the defendant, in question, was of a quarrelsome and murderous disposition; second, that such disposition was known to the defendant; third, that with such knowledge, the defendant negligently permitted said slave to go at large, and fourth, that while so at large, the said slave committed the injury complained of in the plaintiff's declaration. The proof of one, or any of said facts is not sufficient to authorize a recovery. For such purpose all must be proved; and if the plaintiff has failed to prove any or either of said facts to the satisfaction of the jury, then they will find for the defendant. 2. By the murderous disposition mentioned in the instructions, is meant a disposition which would prompt the negro, if unrestrained, to take the life of his fellow-being, and render it dangerous for him to be permitted to go at large with other negroes; and to determine whether the negro had this disposition, they will look to all the facts and circumstances in evidence. The first of these instructions, thus given by the court of his own motion, was in lieu of the first prayed by the defendant below as before stated. Exceptions were had to the instructions thus given upon the prayer of the plaintiff below, and to those given by the court of his own motion, as also to the refusal of the court to give those prayed by the defendant below. The trial resulted in a verdict and judgment for the plaintiff below. The appellant then moved in arrest of judgment and for a new trial, which motions were severally overruled and exceptions taken. The cause is in this court by appeal.

EDWARDS, for Appellant. 1. The court erred in admitting all that part of the testimony of the witness, Viotel, to the introduction of which exception was taken. 1. Such testimony was but hearsay and without the sanction of an oath. 2. It was irrelevant. The issue presented by the pleadings, involved the inquiry whether the slave in question was of a murderous disposition and habit, but his other vicious dispositions and habits were foreign to that issue, and evidence tending to prove them ought to have been excluded. The defendant below is not presumed to have come prepared to rebut evidence of facts. 1 Greenl. Ev. 62, 205. 2. The court erred in giving the second and fourth...