Jones v. Fort , 36 Ala. 449 ( 1860 )

R. W. WALKER, J.

1. The plaintiff having brought before the jury a part of the conversation between the overseer of the defendants and the overseer of Squire Lowry, in reference to the application which the former made for hands to assist in raising the gin-house, the defendants had the right to the whole conversation having relation to the sainé subject-matter.

2. The complaint contained a count in trover; and the bill of exceptions states, that the plaintiff insisted, before 'the court and jury, “that the slave came to his death by the negligence and recklessness of defendants while in their possession.” There was some evidence offered, the obvious purpose of which'was, to show that the gin-house was raised under circumstances which rendered it imprudent to attempt the work at that time. To repel the presumption of negligence and , recklessness which such evidence had a tendency to create, the fact that the work was (undertaken after consultation as to whether it was safe to proceed with it on that day, was admissible in behalf of the defendants. — Ala. & Tenn. R. R. Co. v. Burke, 27 Ala. 541.

3-4. A charge cannot be considered abstract, when there is any evidence, however weak, tending to support it. — Hair v. Little, 28 Ala. 236; Partridge v. Forsyth, 29 Ala. 200. "We cannot say that there is no evidence, to which the first three charges are applicable;' and, as they assert correct legal propositions, we cannot reverse on account of them, although it may be that they were objectionable for generality and obscurity, and calculated to mislead the jury. If the plaintiff desired any modification or qualification of the charges, she could have attained her object by a prayer for additional instructions from the court. — Reavis’ Dig. 319, § 60; Skinner v. State, 30 Ala. 524.

5. As we understand the 4th charge, it assumes as a fact, that Squire Lowry was informed, before the slave Orange was killed, that his sons had sent the slave to assist the defendants. The utmost that can be said of the evidence is, that it has some tendency to establish this fact. The charge was, therefore, an invasion of the province of the jury. — McDougald v. Rutherford, 30 Ala. 253; Shepherd’s Dig. 460.

6-8. It is a mistake to suppose that the bailee of a slave, under a contract of hiring which is general in its' terms, without express restriction as to the nature or place of employment, has all the rights of a master during the period of bailment, and may use or employ him in any way, or at anyplace, where or in which the master could lawfully use or employ him. A master may, if he chooses, set his slave to blasting rock, immure him in an unhealthy mine, or put him before the mast on a distant voyage; but the hirer, under a general contract of hiring, has no right to do any of these things. Such a bailee is entitled to make such use, and bound to take such care of the slave, as prudent masters usually do of their own negroes. The legal effect of the contract is, that the hirer is authorized to employ the slave, or to bail him to another to be employed, in any business to which slaves are ordinarily put, and which is not attended with extraordinary peril to his life or health. . This is but another mode of stating the proposition, that the contract limits the labor in which the slave may be employed to such service as prudent men would usually be willing to engage their own slaves in. — Seay v. Marks, 23 Ala. 532; Ala. & T. Railroad Co. v. Burke, 27 ib. 540; Spencer v. Pilcher, 8 Leigh, 565, (582-3;) Mullen v. Easley, 8 Humph. 428 ; Jones v. Glass, 13 Iredell, 308; McLauchlin v. Lomas, 3 Strobh. 85; Latimer v. Alexander, 14 Geo. 260, (267;) 3 S. & M. 142; Swigert v. Graham, 7 B. Monroe, 661; Hawkins v. Pythian, 8 B. Monroe, 515.

But, where a slave is hired for a particular purpose, the owner agrees to take the risks incident to his employment in that service; and therefore, he may be set to it, and kept at it in the usual way, without regard to the degree of danger involved in such work. — -Nesbitt v. Drew, 17 Ala. 379; Heathcock v. Pennington, 11 Ired. 640; Gorman v. Campbell, 14 Geo. 137; McLauchlin v. Lomas, 3 Strob. 85; Sims v. Chance, 7 Texas, 561; Williams v. Taylor, 4 Por. 234; Lansford v. Baynham, 10 Humph. 267. On the other hand, it is a breach of the contract, for the hirer t.o put the slave to any other service than that for which-he is hired; and especially is this the case, where the service to which he is put involves more danger than the ordinary duties of the service for which he was hired. Authorities supra; Hooks v. Smith, 18 Ala. 338; Bedford v. Flowers, 11 Humph. 242; Angus v. Dickerson, 1 Meigs, 459; Duncan v. Railroad Co., 2 Rich. 613.

When, therefore, a slave is hired to be worked on a plantation, the hirer has the right to employ him in any part of the ordinary labor of the place. Whatever belongs to the customary routine of work on the particular plantation on which he is hired, may be justly supposed to have been in the contemplation of the master when he made the contract; and all such service, therefore, falls within the scope of the bailment. Moreover, we know that gin-houses, corn-cribs, barns, and negro-cabins, constitute a necessary part of every well-ordered plantation, though the work required in erecting and repairing them may only be performed at considerable intervals of time, and may, therefore, be considered an exceptional service, somewhat out of the usual routine of plantation labor. And our opinion is, that where a slave is hired for the specific purpose of being worked on a plantation, if the raising of a gin-house becomes a necessary ox proper part of the business of the plantation during the term of hiring, and is such work as is commonly performed by ordinary plantation hands whenever it is needed, the hirer would he authorized to employ the slave in it, provided due «are and prudence are exercised to prevent accident or injury.

But it does not necessarily follow, that he would be authorized to loan or hire him to another, for the special purpose of assisting in such work. The hirer is authorized to engage the slave in such work, not because that is the special service for which he was engaged, but because, in the regular course of affairs on the plantation, it has happened to become an incident to, and a part of, the general business for which he was hired. But the loan of the slave to another, for the specific purpose of raising a gin-house on his plantation, would not be a bailment for the same general business for which the slave was hired, or for any of the ordinary services of that business; but for a single service, which forms only an ■exceptional and occasional branch of plantation work, and in which the slave can be properly employed only when it becomes fairly, and in the regular order of events, an incident to- the general business of the plantation whose customary.routine of labor he is hired to perform. In the one case, the service is performed because, in the regular course of events, it becomes an incident to the geueral business in which the slave is engaged; in the other, it is performed because the bailment is for that special employment, not for a general business in the regular course of which that particular service has become necessary. And if such service is in fact attended with' more danger than the ordinary labor required of slaves on a plantation, our opinion is, that the hirer of a slave, to be employed as a hand on a plantation, would not be authorized to lend him to another for the specific purpose of assisting in raising a gin-house.' — McLauchlin v. Lomas, 3 Strobh. 87, (90). Such a loan would as effectually change the nature of the service for which the slave was hired, as if the hirer should bail him to a mechanic, for the purpose of being employed in the raising of gin-houses throughout the entire term of the hiring.

On the other hand, if a slave is held under a general contract of hiring, the hirer may make such use of him as prudent masters usually make of their own slaves; in other words, the only limit, upon his authority is, that he must not employ him in any service which involves extraordinary peril to his life or health. The legal effect of such a contract is, to .deny to the hirer the right, as between himself and ,his bailor, of lending or rehiring the slave for the specific purpose of being engaged in any service which involves more danger than prudent masters would usually be willing to have their own slaves exposed to ; for that is the degree of danger meant by the expression “extraordinary peril.” If the raising of a gin-house does in fact involve the degree of danger just defined, then the legal effect of the general contract pf hiring is, to deny to the hirer the right of lending the slave for the specific purpose of assisting in such work. And no such right on the part o'f the hirer can be imported into the contract, by proof of a local custom among planters to send their slaves, as well those hired as their own, to assist their neighbors in raising gin-houses. “A particular usage may be given in evidence, to influence the construction of a contract, or to explain the sense in which words or terms are used; but, when the contract is established, and is not governed by the commercial law, it is not allowable to change its character, and attach to it conditions in opposition to the established rules of law.” Petty v. Gayle, 25 Ala. 422. Custom cannot overturn the positive requirements of the law, or the express contract of the parties, or make the legal rights or liabilities arising out of a given state of facts other than they are by the common law. — Barlow v. Lambert, 28 Ala. 709; West v. Ball, 12 Ala. 340; Cadwell v. Meek, 17 Ill. 220; Foley v. Mason, 6 Maryland, 37; Bedford v. Flowers, 11 Humph. 242. When the question to be determined is, Whether a slave has .been put to work which involves more, danger to life or health than is authorized by the general contract of bailment, the fact that the generality of prudent masters are in tbe habit of engaging their own slaves in the same service, may be admissible evidence. — Ala. & T. Railroad Co. v. Burke, 27 Ala. 540; Mosely v. Wilkinson, 30 Ala. 681. This is very different from changing the legal effect of the contract by proof of a local custom.

From what has been said, these conclusions follow:—

(1.) If the raising of a gin-house involves more danger than the ordinary labor of a plantation ; and a slave, hired specially for plantation service, is lent by the hirer, for the specific purpose of being engaged in such work, and is killed while so engaged, the hirer is liable to the owner, in trover, for his value, although the killing was the result of inevitable casualty.

"(2.) If tbe slave is held under a general contract of hiring, and is lent by tbe hirer for tbe purpose of being engaged in work for the performance of which the generality of prudent masters would not be willing to lend their own slaves, and the slave is killed while engaged in such service, the hirer would be liable for* his value to the owner. But, if the work does not involve extraordinary peril — in other words, if prudent masters would, as a general rule, be willing to lend their own slaves for such service — and due care is exercised by the person employing the slave; then, neither the hirer, nor the person to whom the slave is lent, would be liable for bis loss.

(3.) If, without the authority of the hirer, (whether his contract be general or special,) the slavé is'employed by a third person in raising a gin-house, and is killed while so engaged, the person employing him .is liable for his value to the own'er, no matter what degree of care he exercised in having the work performed. — Collier v. Lyon, 18 Geo. 648; Johnson v. Arabia, 24 Missouri, 86.

"Would the result be different, if the slave is actually sent by the hirer, or under his authority, to assist in work forbidden by tbe scope of liis contract with tlie owner ; and tbe person to whom the slave is so lent, and in whoso service he is killed, has no notice of the fact that he is hired, and no reason to suppose that the party from whom he receives him is not the owner ? The question is one which we have felt some difficulty in deciding; but our opinion is, that in the case supposed, the person borrowing the slave, and in whose service he is killed, would be liable in trover to the owner.

The jus disponendi — the right of controlling and using property — belongs to the owner;, and he who interferes with the property of another, and appropriates it to his own use, is, as a general rule, a wrong-doer, unless he can show that he had authority for such interference and use, either from the owner or the law. Lord Mansfield uttered a legal truism when he said, that “whoever does an act, by which another person receives an injury, is liable to an action for the injury sustained.” — Whitfield v. Le Despencer, Cowper, 765. Ordinarily, the liability of the party inflicting the injury, to make reparation to the person injured, does not at all depend upon the motive or intention with which the act was done. — Perminter v. Kelly, 18 Ala. 719; 1 Hilliard on Torts, 99, 100. As an authority from one who had not the right to confer it is void, it is no legal excuse, for an act which causes an injury to another, that the party committing it acted under 'the direction, or by the consent of a third person, who-himself had no right to grant such authority or permission. Hence the well-settled rule, that if the principal is a wrong-doer, the agent, however innocent in intention, whó participates in his acts, - is also a wrong-doer. Story on Ag. §§311-12. It is difficult to perceive any ground, on which a.permission from, or a contract with another, who had no right’ to give the one or make the other, can, as between the porson’injured and the actual perpetrator of the wrong, change the legal character of the wrongful act, or exempt the author of it from responsibility to the person whom he has injured. It must, therefore, be true, as a general proposition, that if an injurious act be done without sufficient authority, it is no answer to the claim of the owner for redress, that the immediate author of the mischief acted in good faith, by the direction or consent of one whom he supposed to be the owner.

These are elementary principles, and are well sustained by the authorities. Thus, in one of the notes to his edition of Blaekstone, Mr. Ohitty says.: “In every case, where a master has not power to do a thing, whoever does it by his command is a trespasser.” — 1 Chitty’s Black., note, p. 432. In Perminter v. Kelly, (18 Ala. 716,) this court held, that an agent, either with or without notice, is liable in trover, for an act which, if done by his principal, would amount to the conversion of the property of another. To the same effect is Lee v. Mathews, 10 Ala. 682. In Stephens v. Elwall, (4 M. & S. 259,) a merchant’s clerk was hold liable, in trover, for goods which he received from a bankrupt and sent to his employer, although they wore delivered to him for that purpose, and he did not know that neither the bankrupt nor the merchant had any right to them. Lord Ellenborough said: “ The clerk acted under an unavoidable ignorance, and for his master's benefit, when he sent the goods to his master; but nevertheless, his acts may amount to a conversion; for a person is guilty of a conversion, who intermeddles with my property, and disposes of it; and it is no answer that he acted under authority from another, who had himself no authority to dispose of it. And the court is governed by' the principle of law, and not by the hardship of any particular case.” So, if an auctioneer should be employed by a sheriff to sell at auction goods which he had unlawfully seized upon an execution — as if the goods did not belong to the execution debtor — the auctioueerwho should sell would be liable to an action for the tortious conversion, equally with the sheriff. — Story on Ag. § 312; Farebrother v. Ausley, 1 Campb. R. 343; Adamson v. Jarvis, 4 Bing. R. 66. In Newsum v. Newsum, (1 Leigh, 94,) it was held, that if an administrator sell a chattel, whereof his intestate died possessed, but which in truth belonged of right to another, and apply the proceeds to payment of his intestate’s debts, in due course of administration, without any notice of the right or claim of the true owner, he is personally liable to the true owner for the value, in trover brought by the owner against him. Where the widow of a testator, intending to obtain administration of her husband’s estate, began, to collect his assets before she had obtained, letters, and employed A. to collect the debts owing to the testator, which he accordingly did, and paid the same over to the widow, believing that she was the administratrix; and the widow subsequently died, without'obtaining letters of administration, — held,, that A. was liable to be sued as executor de son tort, for the moneys he had received. — Sharland v. Mildon, 5 Hare, 469. These authorities clearly show, that the doctrine, that the possession of an agent is the possession of the principal, has no application to the ease of a wrong-doer. — Ib. 474; Stephens v. Elwall, 4 M. & S. 259; Snowdon v. Davis, 1 Taunt. 359.

If a slave is sent by the hirer to assist a neighbor, in work forbidden by the hirer’s contract with the owner, it cannot be pretended that the use which the neighbor makes of the slave has the sanction of any legal authority. The undertaking of the hirer is, that the slave shall not be employed, either by himself, or by any sub-bailee of his, otherwise than is allowed by the scope of his contract with the owner. — Harris v. Maury, 30 Ala. 681. The hirer has no right to sub-hire, except for purposes consistent with the bailment under which he holds the slave. In the very act of loaning the slave, for a specific purpose forbidden by the contract, the hirer becomes a wrongdoer; aud the possession of the loanee is a possession obtained by wrong, and for an unlawful purpose. So far as the owner is concerned, every use of his property must be deemed unlawful, which' has not the sanction of his express or implied consent. As we have airead}7 seen, the hirer is guilty of a conversion, in permitting the slave to be engaged in a service prohibited by the terms of the -original bailment; and upon general legal principles, it ■seems impossible to escape the conclusion, that the person who actually applies the slave to such service is, as to the owner, equally a wrong-doer. Nor, in the eye of the law, is he less a wrong-doer, because he honestly supposed that the person from whom he obtained the slave ■was in fact the owner. The ground of liability, in all ■this class of cases, is injury to another’s property, without legal authority for the act which occasioned it.

If the hirer, instead of loaning, had sold the slave, and received the purchase-money, and the slave had been killed while in the service of the purchaser, the right of the owner to recover his value, in trover, would be wholly unaffected by the, fact, that the purchaser had bought in good faith, without any notice of the claim of the owner; and yet his claim for exemption from liability would be almost as strong as that of a loanee who, in-ignorance of the true proprietorship, and supposing that he had the owner’s consent, applies the property of another to a use which leads to its destruction. — See further, Story on Bailm. § 39 (a.); 3 Rob. Prac. 72-75; Poole v. Adkisson, 1 Dana, 112; Featherstonaugh v. Johnston, 8 Taunt. 237; Whitman v. Abernathy, 33 Ala. 154, 161; Agnew v. Johnson, 22 Penn. St. R. 471; James v. Le Roy, 6 Johns. 274.

There is a marked distinction, between the case we have supposed, aud that which was presented in Nelson v. Iverson, 17 Ala. 217. That was an action of detinue; and in the course of the opinion the court said: “If the bailee have the temporary possession of the property, holding the same as the property of the bailor, and asserting no title' in himself; and, in good faith, in fulfillment of the terms of the bailment, either as expressed by the parties, or implied by law, restores the property.to the bailor, before he is notified'that the true owner will look to him for it, no action will lie against him; for he has only done what was his duty.” This case proceeds upon the principle, that the bailee cannot dispute the title of his bailor; andthat as the bailee, in returning the property according to. the terms of his contract,, only did what he was legally compellable to do, he cannot be liable for the property to another. But one who borrows a slave, for a service in which he is killed, does not occupy the position of a party who has only done that which he was legally bound, and. could have been legally compelled to do. In the one case, the return of the property is but the discharge of a legal duty; in the other, an injury to another has been inflicted, by an act purely optioual with the author of'the- mischief. A man shall not be put to answer for that to lohich the law obliges him; but he is responsible for his voluntary act, where it inflicts injury' upon the property of another.

The rule laid down in Nelson v. Iverson, supra, when thoroughly analyzed, must, perhaps, be recognized as an exception to the general principles we have stated above. Whilst we are not disposed to disturb that rule, it must be confined to the cases specified in the opinion of the court — that is, to cases where the bailee, in good faith, in fulfillment of the terms of his contract, has restored the property'to his bailor, before he is notified that the owner will look to him for it.

Judgment reversed, and cause remanded.