Philips v. Wheeler

• Decision Date: 01 January 1853
• Citation: 10 Tex. 536
• Parties: PHILIPS v. O. M. WHEELER.
• Court: Texas Supreme Court

10 Tex. 536

PHILIPS

v.O. M. WHEELER.

Supreme Court of Texas.

1853.

Where the plaintiff sued the defendant for the value of a slave who received an injury which caused his death while employed by the defendant, as the plaintiff alleged, in cleaning out a well, without authority from the plaintiff, and it was in proof that the plaintiff's slave and a slave belonging to a third person were cleaning out the well at the time of the casualty, and the defendant offered to prove that it was customary for slaves to assist one another in jobs undertaken by them about town, it was held that the evidence was properly rejected as being too remote and uncertain.

Where the court charged the jury that if the negro Will was engaged in cleaning out the defendant's well with the knowledge, consent, or procurement of the defendant, without the knowledge or consent of the plaintiff, his owner, and the negro was injured in the well, they must find for the plaintiff whatever damage he has shown himself to have sustained thereby: Held, There was no error.

See this case for a misapprehension occasioned by a partial use of a common-law court in assumpsit, amended so as to be specific enough to conform to our practice.

In order to hold a party responsible for injuries which happen to a slave while in his employ, without the authority of his owner, it must be proved that the defendant employed the slave or authorized him to be employed, but such employment need not necessarily be proved by direct and positive evidence, but may be sufficiently established by proof of such circumstances as either necessarily or naturally lead to that conclusion.

Where a party alleged surprise as a ground for a new trial, but it was evident that the surprise was owing to a misapprehension of the law of the case by his counsel, this court refused to reverse the judgment overruling the motion for a new trial.

See this case for facts which warranted the jury in finding that the defendant had employed the slave of the plaintiff, or authorized him to be employed at work for him, during which employment he received an injury which caused his death.

Appeal from San Augustine. The appellee brought suit against the appellant to recover the value of a slave, alleging that the slave escaped from his possession, and was converted by the defendant to his use; that the defendant employed the slave at work in a well upon his premises; and that while so employed and at work the slave received an injury by which he was rendered worthless to the plaintiff, and of which he died; that the defendant, being liable, promised to pay the plaintiff the value of the negro, which he refused to do, “by means whereof a right of action hath accrued to petitioner, and having sustained damages to the amount of fifteen hundred dollars, he brings suit,” and prays judgment “for the full value of the said slave Bill, and for all such damages as may have been sustained in the premises” by the plaintiff.

At the trial the plaintiff amended his petition, averring the loss of the negro out of his possession, and that he came into the possession of the defendant, who knowing the slave to belong to the plaintiff neglected and refused to deliver him to the plaintiff, and conducted himself so carelessly and negligently in regard to the negro that the same was killed while in his possession. The answer contained a general denial. It was in evidence that during the week previous to the injury complained of, a negro (Jack) had been employed by the defendant at work by the day; that on Sunday, the day of the accident, a witness met the defendant going from his house for a rope to draw the plaintiff's negro out of his well; the witness went to the defendant's house; saw the negro Jack and several other persons at the well; the plaintiff's negro Bill was drawn out of the well much injured, which seemed to have been occasioned by the breaking of the rope, which caused a bucket of mud to fall on his head. The negro Jack had the appearance of having been at work at the well, which appeared to have been recently cleaned out. The plaintiff's negro died of the injury.

There was evidence offered by the defendant to prove that it was customary for negroes to assist one another in jobs undertaken by them about town, which evidence was rejected. The court instructed the jury “That if they believed from the evidence that the negro Bill was engaged in cleaning out the defendant's well with the knowledge, consent, or procurement of the defendant, without the knowledge or consent of Wheeler, the plaintiff, and that the negro was injured in the well, they must find for the plaintiff whatever damage he has shown himself to have sustained thereby.”

There was a verdict for the plaintiff. The defendant applied for a new trial, on the ground of surprise and newly-discovered evidence. The court overruled the motion and gave judgment for the plaintiff, and the defendant appealed, and assigned as error the rejection of evidence, the charge of the court, and the refusal of a new trial.

O. M. Roberts, for appellant. The charge was not pertinent to the issue. Felonious Injury, (7 Bacon, 672;) Conversion, (7 Bacon, 792;) Trespass for Wrongful Taking, &c., (1 Chitty, 175.)

Where circumstances negative the assumption of right or exclusive dominion, it is not a conversion. (1 Chitty, 175, 178; 7 Bacon, 792.) Where pleading and proof do not correspond, it becomes a defect in the merits of a cause. (5 Yerger, 394.)

New trial should have been granted. Charge of court if not erroneous was calculated to mislead jury from true issue. (Minot's Digest, 515.) The judge trying should be reasonably dissatisfied with the verdict. (3 Blackstone, 387.)

When Supreme Court can clearly see that court below under the circumstances should have granted a new trial they should remand. (U. S. Sup. Dig., Vol. 2, 434, sec. 103, and many subsequent cases referred to here.)

In ease of accidental injury the evidence should be reasonably conclusive to transfer the loss from the owner to third person. (Rice v. Cade, 10 La. R., 288; 2 Vol. Suppl. U. S. Dig., p. 422, sec. 273.)

Deficiency of proof. (6 Johnson, 44; 12 La. R., 167; 6 Serg. & Rawl. R., 466; 3 Johns. Dig., 435, sec. 71; La. R., 1848.)

Surprise of party in law and fact. (2 Kinne Law Comp., pp. 269, 273; 7 Bacon, 784-5; 9 U. S. Dig., 111.) Mistake of attorney of defendant as to plaintiff's title. (12 La. R., 162; 11 Id., 521.)

Testimony was improperly excluded, because defendant should have been allowed (in the absence of any direct testimony against him) to have proved any fact which would have tended to account for the presence of the negro on his premises otherwise than by his procurement.

Henderson & Jones, for appellee. It cannot be seen what prejudice the action of the court, in rejecting the evidence offered, occasioned the appellant, or what cause of complaint he has to its ruling. In the first place, the evidence was entirely too weak to constitute any proof, since, if true, it could afford no presumption that the slave that was killed, who was engaged in cleaning out the appellant's well on the appellant's premises, and in the very yard of his dwelling, was employed to do so by the other slave, who was engaged in the same work without the appellant's knowledge and authority. On the contrary, the recited circumstances would raise the presumption that he was employed by the appellant under his request or orders. And in addition to this the other slave was proved to have been employed by the appellant; wherefore the presumption that the deceased was so employed also amounted to that degree of confirmation which could only be rebutted by the very strongest evidence.

In the second place, supposing it to have been true that the slave who was killed was employed by the other to do the appellant's work, yet if this was done with the appellant's knowledge and consent, or with the knowledge and consent of his household, who must be supposed to have authority from the appellant to act for him in things of this kind, it is not seen how this would have lessened the appellant's liability. It would, moreover, lead to very hurtful results to establish the doctrine that a person may permit the employment of his neighbor's slave, who has no liberty or freedom, in and about his work without the knowledge and authority of the master and not be responsible for the consequences. In teaching so much disrespect for property there would be left for it very little protection.

Again, if the slave who was killed was engaged by the other slave, yet as his assistance was absolutely necessary in the work in which they were employed, is not the authority of the person about whose work they were employed to be presumed to be given to the one whom he himself employed to employ the other? Certainly so; then, as “ qui facit per alium, facit per se, ” the appellant was as responsible as if the employment had been by himself.

II. Why was the charge of the court not applicable? The complaint was for the conversion of the slave who was killed whilst engaged in the defendant's work, set out possibly a little two much in the common-law style, but nevertheless...