Smith v. Chance

• Decision Date: 01 January 1852
• Citation: 7 Tex. 561
• Parties: SIMS & SMITH v. CHANCE.
• Court: Texas Supreme Court

7 Tex. 561

SIMS & SMITH

v.CHANCE.

Supreme Court of Texas.

1852.

Where the defendant alleged that the contract between himself and plaintiff was in writing and was delivered to the plaintiff at the time, and said allegation was, on exception by the plaintiff, stricken out: Held, That the ruling did not affect the case, and that there was no error. (Note 79.)

Where it comes out, in the course of the trial, that a contract which is the subject of controversy was in writing, it is proper to move the court to exclude from the consideration of the jury any parol evidence of such contract which may have been received, or to ask the court to instruct the jury to disregard it.

Quere as to the proof that will sustain a motion to exclude parol evidence, on the ground that better evidence exists.

Quere as to the certainty required in assignments of error. The appellee and the court ought to be apprised of the points which will be insisted upon by the appellant.

The rule is well settled that where there is a conflict of evidence--where it does not clearly appear that the verdict is wrong, as that it is without or against evidence--a new trial cannot be granted.

The prima facie presumption would be that a slave, hired to assist in carrying on the business of a steam-mill, might be employed in any of the ordinary duties or services necessary to the successful operation of the said mill.

But if the bailment were for a particular purpose, if the slave, as in this case, were hired to perform the duties of an axe hand alone, then it is very clear that the defendants, by employing the property otherwise than as stipulated (in a steam mill) are responsible for his loss, (by accident in the mill,) irrespective of the fact of whether they exercised due care and attention or not. The law presumes that the loss happened from the misuser of the property. (Note 80.)

The degree of care and diligence required of the bailee in a contract of hire varies according to the species of property over which it is to be exercised; but in all cases it must be the same which a person of ordinary prudence or discretion would exercise in relation to the particular thing, were it his own property. A slave is a rational being, capable, in ordinary cases at least, of taking care of himself, and may be expected to perform most of his duties without constant supervision and control, or without the necessity of being constantly watched or followed to keep him from running unnecessarily into danger. But he ought not to be exposed to extraordinary hazard, although incident to the service, without necessity, and without such precautions, by instructions or otherwise, as circumstances may require, and as a man of ordinary prudence would use in exposing his own slave to the same danger. (Note 81.)

The bailor, in a contract of hire, is under the corresponding obligation (which may be waived by special contract or notice) that the property hired shall be reasonably fit for the uses or purposes known to be intended.

Error from Walker. Chance sued the plaintiffs in error for the value of a slave, alleging, in substance, that said slave, while in the employ of the defendants, under a contract of hire as a wood-chopper, was, in violation of the contract, put to work by the defendants in their steam mill, and, while thus employed, was negligently caused and permitted by said defendants to come in contact with the machinery of said mill while the same was being put in motion, &c., by means whereof said slave received an injury which caused his death.

Defendants answered--

1st. By exceptions to the petition, on account of uncertainty and insufficiency.

2d. That the contract was in writing, and was delivered to the plaintiff at the time.

3d. That they had hired the slave as a wood-chopper, but to be employed at such work as suited them; and that said slave, without any default on their part, and while employed as was usual about a steam mill, came to his death by reason of his own negligence and misconduct.

The plaintiff excepted to the defendants' plea that the contract was in writing, and moved that it be stricken out. The court overruled the defendants' exceptions, and sustained the exceptions of the plaintiff.

The testimony as to the terms of the contract of hiring was contradictory. No objection was made by the defendants to the proof of the contract by parol. It was proved that the defendants had used proper care, and that the slave caused the accident by his own rashness and carelessness, after being repeatedly cautioned by the defendants. There was a verdict for the plaintiff; motion for new trial; overruled; statement of facts; but no record of any instructions given or refused. The plaintiffs in error assigned error--

1st. In striking out defendants' pleas.

2d. In overruling their exceptions.

3d. In charging against law.

4th. In refusing to charge the law.

5th. In refusing to grant a new trial.

6th. For other causes.

Yoakum & McCreary, for plaintiffs in error.

I. The contract of hiring was in writing. This we alleged in our first answer. This part of our answer, being excepted to, was stricken out by the court below. The proof shows that the contract of hiring was in writing. It should have been set out or referred to in the petition. As much of the controversy grew out of the question whether, by the terms of the hiring, the boy should work about the mill, the writing was necessary to explain that point. But this writing was held back by Chance, and, as we allege, another and different contract verbally set up. We think, therefore, the court below erred in striking out so much of our answer as set up a written contract.

II. This letting to hire of the negro is of that class of bailments called conductio or locatio; and as the bailment is beneficial to both parties, the bailee must answer only for ordinary neglect. It is admitted that if the bailee used the negro differently from his agreement, he would be liable at all events. But as there was positively no restriction in the contract as to what the boy should do and where he should work, the baillee had a right to employ him about the mill. (13 Johns. R., 211.)

In the case of Mims v. Mitchell, (1 Tex. R., 453,) the hirer, it is said, is bound to observe towards the slave the same humane and careful treatment which a humane and prudent master would observe in the treatment of his own slaves. Does not the evidence show that this was fully done by the bailees? The cautions and warnings were often repeated. (1 Yerg. R., 73; 9 Id., 276;4 Port. R., 234.)

In the case at bar the agent of the bailor knew as well the dangers of the machinery as the owners. They were before his eyes. He knew the character and disposition of his negro also, which the hirers did not know. It was then a fraud upon them to hire them a negro of a disposition so reckless, without giving them notice of the fact, and having it inserted in the contract that the boy was not to work about the machinery. And to enforce the judgment below would be a consummation of that fraud.

III. The liability of a bailee is different in the case of intelligent beings, viz, slaves, from goods of other kinds. (Boyce v. Anderson, 2 Pet. R., 150; Clark v. McDonald, 4 McC. R., 223; Williams v. Taylor, 4 Port. R., 238.) In the case of Clark v. McDonald, in McCord, two slaves were drowned by an accident happening to a steamboat, it was held that the owner or carrier was not liable if the loss was caused by the act of the slaves. This rule, too, was laid down in regard to a case of carriers, in which the rule of law is more strict than in other cases of bailment, especially of bailment for hire.

B. C. Franklin, for defendant in error.

I. In reference to the 3d, 4th, and 6th assignments of error, I would remark, that there is nothing in the record to show that the court gave or refused any charges to the jury. The 6th, “and for other reasons,” is not an assignment of any error under our statutes relative to the subject. (Hart. Dig., art. 2940.)

II. The 2d assignment, that the court below erred in overruling defendants' exceptions to the petition, I apprehend, cannot be sustained. A reference to the statements in the petition and amended petition, and the case of Wise v. Freshly, 3 McCord's Rep., 547, and the case of Mims v. Mitchell and the authorities there cited, would seem conclusive that on the face of the petition the plaintiff would be entitled to recover if the facts were proved as alleged.

III. The first assignment, that the court erred in striking out defendants' pleas, would seem to imply that the court below had stricken out all of the defendants' pleas. By a reference to the plaintiff's exceptions to the 1st, 2d, and 3d pleas of defendants, and the plea as presented in the answer, and the ruling of the court, it will be seen that the only part of the answer stricken out is the following: “2d. And for further answer they say that the contract for hiring was in writing, signed by the defendants, and at the time of such hiring delivered to petitioner.”

That this part of the answer was properly stricken out it seems to me no one can doubt. It presented no issue or defense to the plaintiff's action; and if any issue could have been made on the same, it was immaterial. The plaintiff had alleged the hiring of the negro, and would have been at liberty to prove it either by parol or by writing. If it had been in writing, and the plaintiff proposed to prove it by parol, the defendant might on the trial have excepted, and required the production of the writing. It does not appear that any exception to the testimony offered and given at the trial was taken by the defendants. The decisions and rules laid down by this court in Mims v. Mitchell, (1 Tex. R., 443,) Bordon v. Houston, (2 Tex. R., 594,) and Patterson v. Goodrich, are authorities in point.

IV. The 5th assignment, that the court erred in refusing to grant a new trial. I think I have shown...