Howard v. Coleman , 36 Ala. 721 ( 1860 )

R. W. WALKER, J.

1. The court did not err in overruling the plaintiff’s motion to suppress the deposition of J. E. Todd. The ground assigned for the motion was, that the witness “ did not answer material portions of the 3d, 4th, and 5th cross-interrogatories.” The objection was too general. The plaintiff should have specified what portions of the cross-interrogatories referred to the witness had failed to answer.

2. On comparing the objections made by the plaintiff to cei’tain portions of the testimony of the witness Todd with the deposition of the witness as set out in the record, it is obvious that, either in transcribing the bill of exceptions, or in the bill of exceptions itself, the objections have by mistake been applied to the answers to the 3d, instead of the 4th interrogatory. Accordingly, we shall consider the objections as referring to the answers to the 4th interrogatory. The evidence conduced to show, that Mrs. Howard was the agent of her daughter to hire the slave, and was authorized to control the medical attendance which might be needed by the slave while in the defendant’s possession. On the supposition that Mrs. Howard was such agent, and had such authority, evidence showing that the defendant had sent her a message, informing her of the sickness of the slave, and requesting her to send a physician, and of her response to such message, would have been competent testimony forthe defendant. The message detailed by the witness was, however, sent by Mrs. Coleman, not by her husband; nor was he present at the time. But it appears that the evidence which the plaintiff had offered tended to show that the defendant was absent from home during a considerable portion of the time of George’s sickness; that when not absent, he was at home only at night; and that Mrs. Coleman had the management and nursing of George throughout his sickness. These facts certainly tended to establish that Mrs. Coleman was so far authorized to act for her husband in reference to the slave, as to send to Mrs. Howard the message alluded to. — See 1 Parsons Contr. 287-8, note (b.) We think, therefore, that there was no error in refusing to exclude from the jury the evidence in relation to that message, and the answer thereto which was sent by Mrs. Howard.

3. The obvious purpose of some of the testimony introduced by the plaintiff, was to show that the defendant was unnecessarily absent from home, and neglected the slave during his sickness. To rebut this evidence, it was competent for the defendant to prove that he was engaged in business which required him to be thus absent. In this view, the question put to one of the witnesses, as to defendant’s being engaged in merchandising in Bichmond, might, perhaps, be considered as at least not plainly irrelevant. Moreover, there was no error in permitting the defendant to prove the circumstances under which the small-pox had been introduced into his family. Such evidence might be important, for the purpose of rebutting the idea that the slave had contracted the disease through any fault or neglect on the part of the defendant. With the view of explaining how it was that he had brought the disease into his family, and in connection with the fact that he contracted it while on a visit to New York, it was not improper for the defendant to show that he had been for some time engaged in business which frequently rendered it necessary for him to make such trips to the northern cities. The force of such testimony would be strengthened by showing that the defendant’s habit in this particular was known to Mrs. Howard when she hired him the negro; and the jury might, perhaps, infer such knowledge from the fact that the defendant was merchandising in the village in which Mrs. Howard and her daughter resided.

Other exceptions were taken to the rulings of the circuit court, in relation to the evidence; but they are not insisted on in the argument of the counsel for the appellant, and, according to the well settled practice of this court, we do not notice, them.

4. The court gave the charge which was asked by the plaintiff, but added a qualification, which was obviously based on the idea, that if the defendant hired the negro from Mrs. Howard, in the presence of, and without objection from her daughter; and it was agreed, as part of the contract, that Mrs. Howard should pay the doctors’ bills for the slave, this was, if unexplained by other facts, sufficient to bind the daughter to the contract thus made, and to create the presumption that Mrs. Howard was authorized to control the medical attendance which might be needed by tbe slave during the term of hiring. We think that would he the legal effect of the facts supposed in the charge of the court. The charge must he construed in connection with the evidence; and it does not appear that there was any evidence to rebut or explain the legal presumption which, as we have just declared, arises from the facts referred to. This being the case, we see no legal objection to the charge which the court gave.

Judgment affirmed.