McClain v. Esham , 56 Ky. 146 ( 1856 )

Judge Stites

delivered the opinion of the court.

By the 3d section, chapter 7, p. 143, of the Revised Statutes, it is provided that “a steamboat, or any other boat or vessel, shall also be liable to indemnify the owner of any slave for any damage he may sustain by reason of the conveying or attempting to convey thereon out of the state, or from one part of the state to another, without the consent in writing of the owner of the slave, or unless the owner or person having the rightful control of the slave be also a passenger on the boat or vessel. This section shall also apply when the slave is taken on board of the boat or vessel at any place out of this state. The captain and owner of the boat shall also be personally liable to the owner for such slave.”

Under this section, Eliza Esham brought an action against the master and owners of the steamer Bostona, a Cincinnati and Portsmouth packet, for conveying thereon, from Lewis county in this state, her slave Joshua, of the value of $1,500, to the town of Portsmouth in the state of Ohio, whereby she alledged said slave escaped from and was wholly lost to her.

The defendants put in issue, by their answer, the material allegations of the petition, and set up in defense, that the slave went on board the boat at the town of Yanceburg in said county, in the charge and under the control of William and Thomas Stricklett, citizens of that town, having, at the time of the embarkation, of said slave, rightful control and power over him, by hiring or .otherwise from the plaintiff. A demurrer was likewise filed, and sustained as to portions of the petition, and overruled as to the balance.

Upon a trial of the issues, the jury upon the evidence, and under the instructions of the court, returned a verdict for the plaintiff of $1,500 in damages ; and a new trial having been refused, and judgment entered for the amount, the defendants have appealed.

It is complained of here, that the circuit court erred—

1st. In not sustaining the demurrer to the entire petition.

2d. In excluding competent and relevant testimony from the jury.

3d. In granting and refusing instructions ; and, in overruling the motion for a new trial.

With regard to the first point, we deem it sufficient to say that the petition contained a substantial and sufficient cause of action, independent of the demand for the penalties imposed by the statute. The demurrer was sustained as to the latter demand, and, in our opinion, rightfully overruled as to the remainder of the petition.

It appeared upon the trial that the slave embarked upon the boat at Vanceburg, in Lewis county, in this state, on the 4th September, 1855, in company with Thomas and William Stricklett, proceeded with them to Portsmouth, Ohio, and had not returned or been heard of since. That he had at the time no written pass or authority from his mistress ; and that the said Stricldetts had not hired him from her, nor-had any rightful control over him. It was likewise proved that his mistress lived in Nicholas county, and that the boy had been accustomed, without restriction of his owner, to hire himself out to whom and whenever he pleased.

Two of the witnesses prove him to have been a carpenter, and worth $1,500. All say that he was obedient and subordinate; but some express the opinion that, in view of his habit of hiring himself without control, and the ease with which he could escape across the Ohio, where his recapture would be hopeless, he was not so valuable to his owner. That it was hazardous to keep slaves near the Ohio, and especially to permit them to go at large. The evidence likewise conduced to show that the escape of a slave to Ohio, was equivalent to a total loss to the owner.

During the progress of the trial the defendants, with a view of showing authority from the plaintiff to the slave to go and come when and where he pleased, offered to prove, by a witness, Fitch, the contents of a letter which, he said, he had received from the mistress by the slave, and also a pass given, or purporting to have been given,by her to the slave. The witness stated, in reference to the letter and pass, “that whilst the negro was working for him, in 1853, (under a contract made with him,) he received a letter, purporting to be from his mistress, enquiring about the negro, and whether he was sick. He knew nothing of the plaintiff; had never seen her write, and knew nothing of the genuineness of the letter. He subsequently wrote a letter to her, but received no reply. The negro brought him a letter when he was at work for witness in 1855, purporting to be from his mistress. In this letter the writer understood witness was going to Cincinnati, Ohio, to buy lumber for his house, and that he might take the negro with him, if he would keep an oversight over him and not pay him any money there. That the negro said, when he read the letter to him, that his mistress had not written that letter. He further proved, that when the slave last worked for him, that he had a pass purporting to be from her, allowing him to pass to and from his work. That afterwards he had another pass, as he understood, which witness had not seen. He did not know that the pass was genuine.”

1. Writings purporting to be executed by a party to a suit, should not be used as evidence against such party, unless their execution be duly proved.

This testimony was excluded by the court, on motion of the plaintiff, and very properly, in our opinion. The witness was not acquainted with the plaintiff; had only received one letter purporting to come from her; had written to her but received no reply; and knew nothing of her handwriting. To permit him, under such circumstances, to testify as to the contents of papers in the possession of a slave, would be extending the rule to a most dangerous limit. Under an ordinary and liberal construction of the rule allowing proof of the contents of private writings, the testimony here offered was inadmissible; and we are not inclined to give any greater latitude to it, in cases where writings, passes and licenses, can and are so frequently manufactured for slaves, by evil and mischievous persons, aiding them to escape from their rightful owners. The consequences to the owners of such property, seeking redress against those instrumental in taking ofl their slaves, would be pernicious in the extreme.

The court instructed the jury that, “If they believed from the testimony, that the slave in contest was taken on board the steamer Bostona, from Vanceburg to the state of Ohio, without the written order of the mistress, the owners of the boat are liable to plaintiff for any damage she has sustained by carrying the slave from Kentucky, unless the mistress was also a passenger on the boat with the slave.”

2. Instructions should never be given to the jury hypothecated upon a state of fact which the evidence does not conduce to prove.

2d. “That if they believed, from the evidence, that the young Stricldetts were not the owners nor hirers of the slave, nor that he was in their employment, they had not such rightful control over him as would authorize the boat to take the slave as a passenger on the boat, &c.”

It is objected to the first instruction that it does not pursue the language of the statute; that it makes the liability of the defendants depend alone upon the want of written authority of the plaintiff, and the fact that she was not a passenger upon the boat at the same time; and that it precludes the jury from the inquiry as to whether any other person having rightful control over him, was also a passenger with him on the boat.

If there had been any testimony conducing, in the slightest degree, to show, inferentially or otherwise, that another person than the mistress, having the rightful control of the slaAre, was a passenger with the slave at the time, the failure to submit that enquiry in the instruction, would have been obviously erroneous. But such proof was wanting; and to have submitted an enquiry as to a fact, when there was no evidence. conducing to establish it, would have been a work of supererogation, and might have misled and confused the jury. The instruction was predicated upon the evidence, and properly submitted the inquiries necessary to determine the liability of the defendants.

The question of damage was peculiarly within the province of the jury. It was for them to determine the extent of the damage resulting to plaintiff from the act of defendants. The value of the slave, according to the testimony in this case, was the best criterion of such damage. What that value was, considering his age, habits, vocation, health and character for subordination and obedience, as well as his locality, and the chances or inducements for escape from his owner, the jury were to estimate. The opinions of the witnesses as to his value, in view of these considerations, were elicited upon the trial; and although we might not concur with the jury as to the correctness of their estimate, we do not feel authorized to disturb the verdict for that reason.

3. It 18 peculiarly the province of the jury to ascertain, by their verdict, the value of property when it is sought to be recovered; and the court should not interpose and grant a new trial on the ground that the value fixed is too great, unless it is altogether unwarranted b y the testimony. 4. It is no excuse for removing a slave out of Kent ucky, that the owner unlawfully permitted the slave to go at large and hire himself. (5.B. Mom.173.)

Nor was it, in our opinion, necessary for the court to have informed the jury in detail, what considerations should control them in determing the extent of damage. Their attention was sufficiently directed to that matter, by the evidence and examination of the witnesses as to the value of the slave under the circumstances. Besides, the instruction conforms to the statute, and its general language authorizing a finding for the plaintiff commensurate with the damage or loss sustained, was less likely to confuse or mislead a jury, than to enumerate specially the considerations which should control them in estimating that damage.

The instruction asked for by the defendants was properly denied. However reprehensible the practice of permitting slaves to go at large and without restraint may be, such conduct will not authorize a presumption that the owner has licensed his slave to leave the state at his option. Nor will it protect others who may be instrumental in transporting such slave out of the state in violation of the statute. If they violate the provisions of the statute they do it at their peril, and must be held liable for the consequences. It will avail them nothing, that the owner has also violated the law by permitting his slave to go at large. He is responsible to the commonwealth for such violation, and not to them. (5 B. Monroe, 173.)

We do not perceive that any error prejudicial to appellants has been committed by the court below, and its judgment is, therefore, affirmed.