Hedgepeth v. Robertson

• Decision Date: 01 January 1857
• Citation: 18 Tex. 858
• Parties: HENRY B. HEDGEPETH AND OTHERS v. FELIX W. ROBERTSON.
• Court: Texas Supreme Court

18 Tex. 858

HENRY B. HEDGEPETH AND OTHERS

v.FELIX W. ROBERTSON.

Supreme Court of Texas.

1857.

Where the highway is impassable, or it is necessary in order to extricate a wagon and team from a bog in the highway, it is lawful to lay down a fence by the side of the highway, and pass through the field; this may be done by a slave, in his master's service, his master being responsible for the proper exercise of the right.

There can be nothing clearer or better settled, than that it is proper for the court to charge the jury directly upon the legal effect of the admitted or uncontroverted facts of the case.

Where a slave is lost to his master by the wrongful act of another, it matters not whether he came to his death in one way or another, or whether he is dead or alive, the master is entitled to recover his value.

Where the defendants had proved that the plaintiff, before bringing the suit, had expressed an opinion, formed from circumstances then within his knowledge, as to the existence of a fact, afterwards in issue in the suit, it was held that it would not have been proper for the court to charge the jury, “that the admissions of the plaintiff should be received by them as good evidence for the defendants.”

In cases of wrongful trespass, resulting in the loss of the plaintiff's slave and other damage, the jury may allow exemplary damages.

Appeal from Austin. Tried below before the Hon. James H. Bell.

Suit by Felix W. Robertson against H. B. Hedgepeth, Jared E. Kirby and Joseph H. White, to recover damages, commenced March 2d, 1853. Pleas of not guilty.

Evidence of plaintiff, depositions of A. W. and R. L. Hood, as follows:

The plaintiff's slave, named John, on or about the 17th of April, 1853, was driving the plaintiff's team of five yoke of oxen and wagon, laden with six bales of cotton, the property of the plaintiff, on the road from Washington to Houston. It was immediately after an overflow of the Brazos river; and during the night, in the Brazos bottom, on the east side, John got into a bog with his wagon and team, on the public road, where it ran by the side of, and parallel with the fencing of the defendant Kirby; and John, finding it impossible otherwise to extricate his team and wagon from the bog, there being a large pile of logs on the opposite side of the road, pulled down a portion of the fence, stating that he did not believe Kirby would care. After failing to get his wagon out, John said he would put up the fencing again; but by this time it was too dark to put up the fence well, and John encamped there. Early next morning, defendant Hedgepeth, Kirby's overseer, coming along, and seeing the fencing pulled down, made a great fuss about it, and attempted to chastise John. Witness told Hedgepeth that the pulling down of the fence was done innocently; that it should be put up, and that it was a small thing to make a fuss about. In the meantime John ran off a little piece, and stopped for a few moments. As he ran off, Hedgepeth said, You may go, God d--n you; but I will kill you or whip you before you get home. Hedgepeth then jumped off his horse, put a negro boy on him, and commanded him to go immediately after his double barrel gun and dogs. The negro boy obeyed, and returned in about fifteen minutes with the other two defendants, Kirby and White. Kirby as he rode up, asked Hedgepeth what was the difficulty. Hedgepeth informed him what had taken place. Kirby then asked who the boy John belonged to. Hedgepeth then asked Kirby what he should do. Kirby told him to pursue the boy John, handing him, Hedgepeth, his gun, and telling him to stop the boy, and not to let him go home. Hedgepeth and White, with the gun and dogs, immediately followed after John, who had fled back towards the river; after which witness, A. W. Hood, soon heard guns firing and dogs running in the direction they went. In an hour afterwards Hedgepeth returned, and said he had seen nothing of John. John was never heard of afterwards. He was an expert swimmer. Witness turned the team loose in the range; the cotton was left, three bales on the wagon, and three thrown off in the bog by the wagon. John was an unusually valuable boy; between twenty-five and thirty years of age; worth from twelve to thirteen hundred dollars; services worth $180 per year. A witness for plaintiff testified that the damage done to the cotton, the team and the wagon, and the trouble and expense of collecting the team, would amount to about one hundred and fifty dollars.

The fence of Kirby's field was being repaired, and was still unfenced a few hundred yards on the road in the direction of Houston, beyond where John took down the fence. At the place where John pulled down the fence, the road that had been traveled a few days before was on the inside of the new fence, and there was no cotton growing on it. John fastened his oxen by a log chain to a stump on the side of the road next the fence, so that few, if any, of the oxen could, in swinging around, reach across the road (where it had been a few days before), to where the cotton was growing. The cotton was just coming up; but a few stalks were touched or injured by the cattle.

The defendants' evidence was as follows: The defendants had not cross-examined the plaintiff's witnesses, and the depositions of the same witnesses, taken by the defendants, were as follows:

Witness (A. W. Hood), Robert L. Hood, and the negro in question, crossed the Brazos river at Baldridge's Ferry about the 15th or 20th of April, A. D. 1852. The negro boy started from the river, after we had crossed, ahead, and shortly afterwards I started and found him about one-third of the way out of the bottom, with his wagon upset. After aiding him to reload, it being then nearly dark, we started on again, the negro ahead as before, and when we were about half way up Kirby's fence, outside of the field, I overtook him again, bogged down; about the time I stopped my wagon the negro commenced pulling down the fence; I told him not to pull down the fence, for we could not get out of the bottom that night; and that we had better tie up our oxen until morning, when I thought we could easily get along outside the fence, but he replied that he be d--d if he didn't know Col. Kirby, and Kirby knew him, and that he would pull down the fence and go out of the bottom that night; after pulling down the fence he made several attempts to make his oxen pull the wagon into the field, but, failing to do so, he finally concluded to camp. I tied up my oxen on the outside of the fence and built my fire on the opposite side of the road from the fence; the negro however, carried his oxen on the inside of the fence and, leaving them all chained together, fastened them to a stump in the field, and then built his fire on the inside of the field, about twenty yards from where I was camped, and remained in the field with his oxen, about five yoke, and his horse, until morning. As soon as it became light I saw Kirby's hands at work, up ahead of us, some quarter of a mile, and I told the boy he had better go up where they were and get help, as I myself was unable to assist him, and also told him, if the overseer was there, he had better tell him what he had done. He went off and was gone but a short time when he returned with two stout negro men. As soon as he returned I told him to throw off some of the cotton, and I think they had about three bags off the wagon, when Hedgepeth, one of the defendants, rode up to me and asked me by what authority I pulled down his fence. I replied that I had not done so. He then turned his horse and asked the boy John if he had pulled down the fence, who reglied that he had. Hedgepeth asked me then if John was under my charge. I told him that he was not, only so far as to see that the wagon and team were taken care of. Hedgepeth then said to John, “I'll whip you, God d--n you.” Upon this Hedgepeth started to ride up to John, but he went round on the opposite side of the oxen. Hedgepeth then said to the boy, “pull of your coat, I mean what I say, sir,” to which John replied, “I spects you does sir.” Upon this Hegepeth spurred his horse around on the same side of the oxen with John, but John ran out of the field by the wagon; as he passed the two negroes who were aiding him to unload, Hedgepeth called to them to catch him, and one of them made a pass at him, but John told him not to lay his hands on him; John then ran about thirty yards down the road towards the ferry and stopped. As he was going off, however, Hedgepeth called out to him, “you can run, God d--n you, but I'll whip you or kill you before you get home, you d--d son of a b--h. With that Hedgepeth leaped from his horse, and told one of the negroes above referred to, to go to Col. Kirby's after his gun and dog; but at that time he did not follow John out of the field. I then observed to Mr. Hedgepeth that may-be we had better fix the matter up without any difficulty; but he did not reply; upon which I turned and went to John, who was still standing in the road, about thirty yards off, and when I got up to him, asked him if he intended to leave; he said that he did, and I then told him that he had better come back, for Col. Kirby would come down, and if they whipped him at all, they should not whip him much; but he refused to do so, and hallooed to my nephew to bring him his horse, but Hedgepeth took hold of the horse about the same time with my nephew and said that he would take care of the horse; about this time John ran off towards the river. About an half hour after this Col. Kirby and White, and another young man whom I did not know, came down where we were. Kirby, when he rode up, asked what the difficulty was; but I heard no one reply. Kirby then asked me whose wagon it was (referring to John's wagon). I replied that it was Capt. Felix Robertson's, of Independence. Kirby then said that Robertson was an old friend of his, and that he disliked to see...