Garneau v. Herthel

• Decision Date: 31 October 1851
• Citation: 15 Mo. 191
• Parties: GARNEAU v. HERTHEL.
• Court: Missouri Supreme Court

15 Mo. 191

GARNEAU

v.HERTHEL.

Supreme Court of Missouri.

October Term, 1851.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

WRIGHT, for Appellant. 1. The respect which this court judicially entertains for the verdict of a jury in a civil case, becomes valueless when a blunder is manifest A reversal would not have been urged on this ground, but from the conviction, sincerely entertained, that the appellant has been sacrificed for his ignorance of English. It is certainly the duty of every adopted citizen to learn our language, but I know no law which authorizes us to teach them in this way. 2. The question presented by the motion in arrest of judgment, is an important one. Will the employment of a slave, without the consent of the master, irrespective of the question of neglect or care, render the employer responsible for all consequences, immediate or remote, direct or consequential? The petition is based solely on employment without consent. It is not alleged that the business was dangerous to life or limb--much, less that the defendant knew it to be so. There is a total absence of all averments, charging any laches or want of care on the part of the defendant. 3. It is further abundantly established by the testimony, that the defendant is a German, ignorant of our language, and was in the habit (common among Germans in such case) of answering “yes” when accosted, either through ignorance of what is said, or of the precise import of that monosyllable in our language.

TODD & KRUM, for Respondent. 1. No instructions having been asked by the defendant (appellant here), and no exceptions having been taken by him, to the instructions given by the court below, the Supreme Court will not consider the facts in the case nor review the verdict of the jury. 9 Mo. R. 48-9, 291, 355; 10 Mo. R. 512; 13 Mo. R. 16; Britton v. Cockran, 14 Mo. R. 446.2. Even were this court disposed to depart from its well established rule in cases like this, and should review the testimony, another difficulty is presented on the face of the record which is insurmountable. It will be found on an examination of the testimony preserved in the bill that the testimony is conflicting in respect to the facts that were deemed material to establish the defendant's liability, as well as in respect to facts that were deemed material to show that the defendant was not liable. For example, the testimony is conflicting in respect to the hiring or employing of the negro. In respect to the admission of the defandant, touching his employing the negro, and in respect to the fact whether the defendant understood the English language sufficiently to enable him to understand ordinary conversation. 3. The instructions given by the court, assert correct principles of law upon the facts in this case and where not calculated to mislead the jury, nor can it be said that the jury found against the instructions of the court. The court therefore, did not err in overruling the defendant's motion for a new trial. 4. The motion of the defendant, in arrest of judgment, was properly overruled. There is nothing intrinsic upon the face of the plaintiff's petition, amounting to a defect, which could have been reached by a general demurrer This is the test. The question raised by the defendant's motion in arrest of judgment, is whether the facts stated in the plaintiff's petition show prima facie a right of action against the defendant. The petition alleges the enticing of the negro, by the defendant, from the possession of the plaintiff, which is ipso facto a wrong. It also alleges the employment or use of the negro by the defendant, which is, of itself, a trespass, and by reason of such use, it is alleged, that the negro became lost to the plaintiff. If these facts are admitted, there is shown, prima facie, a right of action against the defendant. The defect complained of is not a jeofail after verdict....