Harvey v. Skipwith

• Decision Date: 13 May 1863
• Citation: 57 Va. 393
• Court: Virginia Supreme Court
• Parties: HARVEY v. SKIPWITH & als.

57 Va. 393

HARVEY v. SKIPWITH & als.

Supreme Court of Appeals of Virginia.

May 13, 1863

1. The hirer of a slave puts him to a dangerous employment in violation of the contract of hiring, and the slave is injured. In an action by the owner against the hirer for the injury to the slave, the stating the contract in the count and the injury as done in violation of the contract, does not prevent the count being in tort.

2. Persons owning a reversionary interest in a slave may sue for an injury done to him whilst held by the life tenant.

3. A husband who has survived his wife and has qualified as her administrator, may unite with the other joint owners of the reversion of a slave for an injury done to him; and the description of him in the commencement of the declaration as administrator of his deceased wife, will be considered as mere descriptio personæ ; the declaration stating the interest in the property as his, and the injury done to his property.

4. The fact tat the life tenant has received back the slave from the hirer, before the action is brought by the reversioners constitutes no defence to their action.

5. If a hired slave is put by the hirer to a dangerous employment, in violation of the contract of hiring, and is seriously injured whilst thus employed, the hirer is liable for the damages notwithstanding the slave may have been negligent or imprudent, or have acted in disobedience of the orders of the hirer in respect to such employment, and notwithstanding such negligence or imprudence or disobedience may have been the proximate cause of the injury.

This was an action on the case in the Circuit court of the city of Richmond, by Robert Skipwith and others against Robert Harvey. The declaration was filed at July rules 1858, and contained two counts. In it Robert Skipwith, George N Skipwith, Wm. M. Skipwith and James M. Whittle administrator of Cornelia L. Whittle deceased, who was Cornelia L Skipwith, complain of Robert Harvey, & c. For that heretofore, & c., the plaintiffs were the owners and proprietors of the reversion of a slave named Jefferson, in which Mary Skipwith held a life estate; and that the defendant had hired the said slave from Mrs. Skipwith for the year 1853, at the price of one hundred and forty dollars; but upon the distinct understanding and agreement that the said slave should not be employed in or about the blasting of rocks or using powder, or exposed to hazard of life or serious injury from being thus dangerously employed. That the defendant in violation of his agreement did employ the said slave about the blasting of rocks or using powder, thereby exposing him to danger; and in consequence thereof on the 28th day of May, 1853, the said slave while engaged in and about the blasting of rocks and using powder, was seriously injured by an explosion of the powder so being used, and had both his eyes so injured as to destroy the sight thereof, & c.

The second count after stating the title of the plaintiffs to the reversion and the life estate of Mrs. Skipwith, and her possession of the slave Jefferson as in the first count, omitted the statement as to the hiring of the slave by the defendant from the life tenant; and instead thereof, charged--That the defendant not having obtained therefor the permission and authority of Mrs. Skipwith or the plaintiffs, but against the express injunction and request of Mrs. Skipwith, did wrongfully employ the said slave in and about the blasting of rocks and using of powder. In consequence whereof, & c., as in the first count. To the damage of the plaintiffs fifteen hundred dollars.

At the November term 1858, of the court, the defendant tendered two pleas in abatement of the action, which being objected to by the plaintiffs were rejected by the court: and thereupon the defendant excepted. The first plea prayed judgment of the writ because the three first named plaintiffs suing in their individual rights were joined in the action with the plaintiff James M. Whittle suing as administrator of Cornelia L. Whittle deceased. The second plea alleged that the three first named plaintiffs, with Thomas B. Skipwith and James M. Whittle were the owners of the reversion in the slave, in which Mrs. Skipwith was entitled to an estate during her life. That Thomas B. Skipwith had conveyed and assigned all his interest in the slave including all claim for damages done to the said slave, to the three first named plaintiffs and James M. Whittle; and the objection was that Whittle was not a party plaintiff in his own right.

On the 4th of December, in the same term of the court, the defendant demurred to the declaration and each count thereof; and the plaintiffs joined in the demurrer: and thereupon the office judgment was set aside. And on the 19th of January, the defendant pleaded " non-assumpsit," " not guilty" and " non-damnificatus, " " payment," and " accord and satisfaction; " on all which issues were made up. The defendant also tendered a special plea, which was objected to by the plaintiffs and rejected by the court. And the defendant again excepted. This plea alleged that the only contract of hire which he made for the slave was embraced within and evidenced by a writing obligatory executed by the defendant to Mrs. Skipwith, with W. Goddin as his surety; but which was not delivered until the month of April or May, 1853, by which the obligors bound themselves to pay to Mrs. Skipwith on the 1st of the next January, $140 for the hire of the said slave for the year 1853; and moreover covenanted to return said slave to her at the ensuing christmas well clothed with the customary clothing and furnished with a hat. That the said writing obligatory had been fully paid off and discharged before the institution of this suit; that the slave was returned to Mrs. Shipwith at or before the ensuing christmas, and was received by her. That if the defendant was liable to any person for the return of the slave in as good condition as when he was received by the defendant, he was liable to Mrs. Skipwith. And that after the payment of the money, and the return of the slave and his reception by Mrs. Shipwith, the said writing obligatory was delivered by her to the defendant before the institution of this suit.

At the spring term of the court for 1859, the court overruled the demurrer to the declaration; and the parties proceeded to a trial before a jury. Upon the trial the plaintiffs introduced as a witness Thomas B. Shipwith, who stated, that the slave injured was one of the slaves held by his mother Mrs. Skipwith, as her dower slaves in the estate of her late husband, and that the witness, and the plaintiffs, and Cornelia L. Skipwith, who had married the plaintiff Whittle, and had died in 1851, were the distributees and entitled to the reversion after his mother' death. The defendant then objected to the competency of the witness; but the plaintiffs having produced a deed by which he had, before the institution of this suit, conveyed and assigned to them all his interest in the slave, including therein all claim for damages for all and every injury of any kind therebefore done to the slave; the court overruled the objection; and the plaintiff excepted.

Upon the cross-examination of the witness Thomas B. Skipwith, by the defendant's counsel, he was asked if the defendant was in lawful possession of the negro when the accident happened. To which witness replied he supposed he was, as he had hired him. And thereupon the plaintiffs asked the witness as to the terms of the contract between the defendant and Mrs. Skipwith, the life-tenant of said slave. To this question the defendant objected; the plaintiffs being no parties to that contract. But the court overruled the objection: and the defendant again excepted.

After all the evidence had been introduced the plaintiffs moved the court to give the following instructions:

" If the jury shall believe from the evidence, that the slave Jefferson, in the declaration mentioned, was hired by the defendant for the year 1853 from the life-tenant, upon the promise and agreement of the defendant that the said negro slave should not be employed in blasting rocks or using powder whilst in the service of said defendant, or exposed to hazard of life or serious injury from being thus dangerously employed: and if they believe from the evidence that the defendant took possession of the negro under that contract, and whilst so in his possession the said negro was employed by the defendant, or his agent having control of said slave, in blasting rocks or using powder, or exposed to hazard of life or serious injury from being thus dangerously employed, and was seriously injured whilst thus employed or exposed, by an explosion of powder; then the plaintiffs have a right to recover notwithstanding that the slave may have been negligent or imprudent, or have acted in disobedience of the orders of the defendant's manager in respect to such employment or exposure, and that such negligence or imprudence or disobedience may have been the proximate cause of his injury. But if the jury shall believe that said injury occurred to the said slave whilst he was in the employment of the defendant in pursuance of the contract, then they shall find for the defendant."

2. " That the plaintiffs cannot recover in this action the value of the life estate of Mrs. Mary Skipwith in the slave Jefferson, or the interest in remainder in the said slave of Thomas B. Skipwith."

The defendant objected to the instructions moved for by the plaintiffs, and moved for six instructions himself. Of these the first three were given by the court. The others were as follows:

4. " The court instructs the jury that the case of West v. Sweeney recently decided by the special court of appeals,...