Mims v. Mitchell

• Decision Date: 31 December 1846
• Citation: 1 Tex. 443
• Parties: HENRY MIMS v. ISAAC N. MITCHELL
• Court: Texas Supreme Court

1 Tex. 443

HENRY MIMS

v.ISAAC N. MITCHELL

Supreme Court of Texas.

December Term, 1846.

Appeal from Colorado County.

The averments in pleading ought to be sufficiently clear and certain to apprise the opposite party of what he is called upon to answer, and what is intended to be proved. Without such certainty, objections to evidence should be sustained.

No proof should be allowed that does not correspond with the averments in the pleadings. The allegata and probata must reciprocally meet and conform to each other. [ Post, 527; 2 Tex. 206, 460, 541;3 Id. 305;5 Id. 535;7 Id. 338;9 Id. 426;11 Id. 157, 662;12 Id. 327;16 Id. 400;19 Id. 406;21 Id. 508;25 Id. 194;28 Id. 219.]

The effect of a general traverse or denial by the defendant is simply to throw on the plaintiff the burden of proving the truth of the averments material to his action; it will not let in proof of new and independent facts, which may constitute a defense.

New matter, which is in avoidance of the cause of action, must be specially pleaded.

Exceptions to pleading which do not appear from the record to have been relied on in the court below, will be considered as waived. [ Post, 527.]

Where it appears that the law of the case has been mistaken by the court, and there is reason to believe that the verdict may have been influenced by such mistake, the judgment will be reversed and the cause remanded, unless it be apparent that the justice of the case has, nevertheless, been attained. [10 Tex. 2;24 Id. 488.]

The hirer of a slave is bound to observe towards the slave the same care which a discreet, humane and prudent master would observe in the treatment of his own slaves. Less than ordinary care and diligence would render him responsible for any loss or injury which might accrue to the owner. [7 Tex. 561;8 Id. 6;16 Id. 296.]

The contract of hiring implies a promise on the part of the hirer to re-deliver the slave at the expiration of the term in as good condition as he received him; unless his condition had become deteriorated without the default or negligence of the hirer. [12 Tex. 370;29 Id. 40.]

A hirer is as responsible for the conduct of his agents and those acting under him as he is for his own conduct.

Robinson and Fischer, for appellants.

Rivers, for appellee.

No briefs filed on either side.

Mr. Justice Wheeler delivered the opinion of the court, giving a full statement of the facts; Mr. Justice Lipscomb not sitting in the case.

WHEELER, J.

This was a suit brought to the spring term, 1844, of the district court, to recover of the defendant the value and hire of a negro girl.

The petition contains the averments that the defendant hired of the plaintiff “a negro woman named Mehala, between fifteen and sixteen years old, sound and well conditioned,” the property of the plaintiff; that the defendant was to pay the plaintiff for two months' work of said Mehala, and at the end of that time to return her to the plaintiff, “in like good condition;” and that the time of the commencement of the said hiring was the 28th day of August, 1842; that the defendant, though requested, has not returned the negro woman -- but has neglected and refused so to do; and that he (the plaintiff) “is informed, and had reason to believe, that his said negro woman Mehala is dead, caused by the ill and inhuman treatment of the said Mitchell.” The plaintiff avers that, by reason of the promises, he has sustained damages to the value of the negro woman, $500, and of her hire, $200, for which he prays judgment.

The answer of the defendant is as follows:

“Defendant, by attorney, appears and demurs generally to the petition of the plaintiff, and, for answer, says that all matters and things in plaintiff's petition contained are untrue, for this, that the negro Mehala was lawfully re-delivered at the end of the term to plaintiff; that if plaintiff has suffered any loss, he has accepted satisfaction for the same from the defendant, and that all hire has been punctually paid; and defendant pleads the statute of limitation. Defendant, by leave of the court, answers and says that he re-delivered said negro when he ought so to do.”

There was testimony tending to show that the negro girl had come to her death on or near the way leading from the residence of the defendant to the plaintiff; and from what cause does not satisfactorily appear. A witness, Roundtree, who was an “overseer” for the defendant, testified to having chastised the girl himself on two or three occasions, about the time of the last account we have of her in the possession of the defendant, and of also having seen the defendant correct her; but, as he says, “not in a manner to injure her;” that he and defendant (about the time he chastised the girl) left for the army (being the time when the country was invaded by Gen. Woll). That defendant, on starting, addressed a note to the plaintiff, which he left with a Mr. Larkey, to be sent by the girl; that Larkey was left in control of the plantation of defendant. There was proof of the hiring, and testimony that the girl was sound, “active and sprightly and headstrong.” There was also proof of the value of the girl, and that the plaintiff had received some property from the defendant, valued by the witness at $35, but on what account it was received -- whether in payment of hire, or in satisfaction of damages, does not appear.

It was proposed in behalf of the plaintiff, to prove “the act or admission or both” of Larkey; but the testimony was objected to by the defendant and rejected by the court. The court charged the jury that the hirer must take the same care of a hired slave that a prudent and humane master is bound to take of his own; that such care is common or ordinary attention, and the hirer is responsible for common or ordinary negligence. The onus probandi of such negligence rests upon the plaintiff, otherwise the sudden death or loss of the hired slave arising from the act of God would be chargeable upon the hirer.”

The jury returned a verdict for the defendant on which was rendered a judgment “that the suit be dismissed.” And the cause comes before us on appeal.

It is singular that the judgment on a verdict should have been one of dismissal. But though manifestly wrong it can afford no ground for remanding the cause; since we are authorized to render such judgment as the court below ought to have rendered on the verdict, should we find it supported by the evidence and law of the case. And this under the issues is the subject of inquiry.

The pleadings are extremely defective in respect to certainty, perspicuity and accuracy in setting forth the facts which coustitute the cause of action and grounds of defense. Facts are not stated directly with the time, place and circumstances attending and giving character to them; but indirectly and by reference and conclusions drawn from assumed facts are stated, rather than the facts upon which the conclusions arise. For instance, that the plaintiff delivered the girl to the defendant pursuant to the contract of hiring, is a fact material to his cause of action; yet it is not averred, and can be arrived at only by inference from the averment that the defendant agreed to redeliver. Accord and satisfaction is a ground of defense and justification relied on by the defendant; yet he does not state when, where or how accord and satisfaction was made and accepted by the plaintiff. This generality is contrary to all rule and principle and ought to be discountenanced. The object of pleading is to apprise the court and the opposite party of the facts on which the pleader intends to rely, as constituting his cause of action or grounds of defense. And the averments should set forth the facts relied on with such precision, clearness and certainty, as to apprise the opposite party of what he will be called upon to answer, and what is intended to be proved, so that the evidence introduced may not take him by surprise. Such certainty is essential in order that the facts relied on by either party may be understood by the party who is to answer them, by the jury who are to ascertain their truth, and by the court who is to give judgment upon them. 2 Cowp. 682. Where there is not such certainty, objections to evidence ought to be sustained; for a party ought not to be permitted to prove what he has not averred. More especially is this true in reference to the pleadings under our system; where the technical general issues of the English system, adapted to their forms of action, each constituting the foundation for its own peculiar evidence and defense, are unknown. Under the general issues, as recognized in that system, matters of defense admissible in one form of action may be inadmissible in a different form of action. But with us, neither the distinctions of the forms of action, nor the general issues exist; but our pleadings really are or are intended to be, what the English pleadings are defined to be; the statement in a legal and logical manner of the facts which constitute the plaintiff's cause of action, or the defendant's ground of defense, or the written statement of those facts, intended to be relied on, as the support or defense of the party in evidence. 3 Term, 159. A general traverse or denial in our system is not to lay a foundation for the introduction of new affirmative matter in evidence; but simply to throw upon the plaintiff the burden of proof. Its office here is not to let in proof of independent facts, which shall constitute a defense; but to require the plaintiff to prove the truth of every averment, material to his cause of action. But if the defendant is in the possession of facts which, admitting the averments in the petition to be true, show that the plaintiff still has no cause of action; as that (in the present instance) the slave had come to her death without any fault in him or his agents, and that therefore, he is excused from restoring her to the owner, and exonerated from any...