Hedgepeth v. Robertson , 18 Tex. 858 ( 1857 )

Wheeler, J.

The pulling down of the fence, under the circumstances, was a necessary and justifiable act, and no trespass. (2 Kent, Com. 338.) But if it did amount to a trespass, it was not an unauthorized and wanton, wilful or malicious trespass; it was done by the slave necessarily, in the performance of his master’s service, in the pursuance and execution of the authority and duty confided to his slave ; and if there was any injury occasioned by the act, the master was responsible for it. (McManus v. Crickett, 1 East. R. 106; Story Agency, Sec. 456, n ; Id. 318.) Night had overtaken the slave; he was unable to proceed on his way, or to see to put up the fence properly, and he had a right to camp upon the spot. If there really was any injury done to the cotton, it must have been very trifling; a small matter, as the witnesses thought, to make a fuss about; certainly a very small matter to make the occasion of a desperate resolve to whip or kill the slave of a neighbor, who had not delegated to them his power and authority over his slave, and who was himself responsible, and would doubtless readily "have made reparation, if any injury had been done. It is very evident that no injury had been intended. The field was not inclosed ; a little further on there was no fence ; it is not probable, in the night as it was, and in the situation he was in, that the negro saw or knew there was cotton planted there ; there is no reason to believe he intended anything wrong, or supposed he had done anything for which he would incur the displeasure of the defendants. The contrary is evident.

There was no complaint of any injury to the cotton at the time; that appears to have been an after discovery. It was the pulling down of the fence, which appears to have given the offence ; and in that the negro had done nothing to incur blame, much less .to give occasion for that hot haste and desperate resolve, which would listen to no explanation, apology or intercession, nor stop at anything short of unlimited chastisement, or the death of the slave.

Comment upon the evidence is unnecessary. It is indisputable that the "‘defendants’ interference with the negro, in the manner of it and under the circumstances, was, to say the least of it, unauthorized and improper. They had no right to drive or frighten the slave away from his master’s employment and the care of the property entrusted to him, by threats and violence; nor had they any right to go after and bring him back by force. The master had not delegated to them any such authority over his slave. If he left his master’s employment without cause, that was the master’s concern, not theirs. Their interference with the negro, under the circumstances and in the manner of it, was not a trespass merely, but an outrage upon a neighbor’s property and rights, for which all concerned are alike responsible, civilly, for the injury thereby occasioned.

The charge of the Court is not obnoxious to the objection that it is a charge upon the weight of evidence ; nor, when rightly viewed in its connexion and according to its obvious sense and meaning, is it obnoxious to just criticism ; much less to the grave imputation that its effect was to deny the defendants their constitutional right of trial by jury.

There was no question to leave to the jury as to the sufficiency of the evidence to prove the fact and manner of the pursuit. These were not contested upon the trial; but were proved, as well by the defendants’ evidence as the plaintiff’s. There was no question of evidence for the jury to weigh on that subject. There was and could be no question about the fact of the pursuit and the manner of it. It was entirely proper, therefore, for the Court to proceed directly to instruct the jury as to the legal effect of such a pursuit, without sub' mitting a hypothetical case, as though there was a question about the fact, when there was none. Such a course would, or might have had a tendency to mislead, by inducing the jury to suppose they were at liberty to find contrary to the plain- and uncontroverted truth of the case, that there had not been such a pursuit.

There can be nothing clearer, or better settled, than that it is proper for the Court to charge the jury directly upon the legal effect of the admitted, or uncontroverted facts of the case; as the Court did in this instance. It manifestly was not a charge upon the weight of evidence ; but upon the legal effect of facts, proved indisputably by the evidence on both sides, and not open to question or dispute. By the expression, “ the circumstances of this case,” the Judge evidently meant nothing more than simply to distinguish, in a word, between the present and a case where he supposed it might be lawful to pursue a negro with dogs and arms ; as where he had committed a felony, or was a fugitive and runaway from the service of his master, and could not be otherwise apprehended. The obvious intention and effect of the language of the charge was, to instruct the jury that this was not that character of case. There could be no pretence that it was. Nor can there be a question that it was right and proper for the Court to instruct the jury as to the legal effect of the pursuit under the circumstances of this case, as they were proved and admitted by the evidence on both sides.

The error assigned in the refusal of instructions scarcely requires notice. The refusal of the tenth instruction asked is complained of. The question for the jury to decide was, whether the slave had been lost to the plaintiff by the wrongful acts of the defendants ; and upon that issue, the statement of the plaintiff, relied on as an admission, really amounted to no evidence in favor of the defendants. What the plaintiff may have said about tracking the negro, and what he then thought about his having been shot, did not tend, in the remotest degree, either to prove or disprove the issue. It was not material whether the negro came to his death in one way or the other, or whether he was dead or alive, so that, b/ the wrongful acts of the defendants, he had been lost to the plaintiff. (Robinson v. Varnell, 16 Tex. R.) But if the statement of the plaintiff had been evidence, it had gone to the jury, as such, without objection; and to have given the instruction asked would have had a manifest tendency to give it undue importance in the minds of the jury. In any view of it the instruction was very properly refused.

There manifestly was no error committed upon the trial, to the prejudice of the defendants. But there was error in the charge of the Court to the evident prejudice and injury of the plaintiff. The Court limited the jury in their award of damages to the rule of mere compensation. This was error. It was a clear case for the awarding of exemplary damages ; and the jury ought to have been instructed that they were at liberty to give such damages. It was an unwarrantable interference, on the part of the defendants, with the plaintiff’s property, attended by circumstances of aggravation, which called for the imposition of damages, not for compensation merely, but also for punishment and prevention. There are scarcely any damages which an unprejudiced jury would give in such a case, which the law would deem excessive. But this was an error in favor of the appellants, one which doubtless operated in their favor ; it was an error committed against the plaintiff; but of which he has not complained, and the defendants can not. There was not the slightest ground for prosecuting this appeal by the defendants; and we are of opinion that the judgment be affirmed with damages.

Affirmed with damages*