Pridgen v. Buchannon , 24 Tex. 655 ( 1859 )

Roberts, J.

The court charged the jury, “ that the hirer of a negro, at public hiring, and for the year, such as is required of the negroes of minors, is not bound to keep the negroes hired in the boundary of the county where hired, unless there is a special contract.” And again, “ as to Buchannon, I charge you, that if you believe that Buchannon, being a planter at home within De Witt county, himself or by his agent, carried the negroes to Old Caney, and employed them in picking cotton only, and whilst so employed, he used all reasonable care and caution in the manner of working and management of said negroes, as a prudent and careful master would use in the management of his own negroes, and the negro sickened and died without the fault of defendant, then the defendant would not be liable, and you should find for the defendants.”

This charge assumes, in favor of the defendants, the main matter in issue, which was, that the removal of the slave Biddy, from De Witt county to Old Caney, to be there employed in picking cotton, in the fall of the year for which she was hired, was neither a violation of the implied obligation resting on Buchannon, nor an act of imprudence, which would render him responsible for her death, by sickness, at the place to which she was carried.

The evidence showed, that all the parties, at the time of hireing, resided in DeWitt county, and continued to reside there, and that the removal of the slave to Old Caney, at that time, greatly increased the risk of her life, and was, in the opinion of some of the witnesses, an imprudent act on the part of owners of slaves. If Buchannon placed the slave in an employment which, from its nature and locality, was more hazardous to her life than that reasonably contemplated by the parties at the time of hiring, he would clearly be responsible for the death of the negro from sickness, while thus exposed. This would be the case, although he might not be bound to keep the slave exactly within the boundaries of De Witt county, under all circumstances that may be imagined. (White v. Harmond, 3 Sneed’s Rep. 322; 1 Bouvier’s Institutes, § 988.)

In the absence of an express contract concerning the mode and place of the employment, the residence of the parties, the character of their business, the nature and qualities of the thing hired, and other facts relating to the hiring, are proper subjects of investigation, to ascertain the implied obligation of the parties. Ibid. We think this charge is erroneous, and for that error the judgment must be reversed.

There may be a question whether the plaintiff has a right to recover damages against Buchannon alone, under the allegations made in his petition, but as that question has not been made in either court, and as any question thereon may be obviated by the amendment of plaintiff’s petition, if deemed necessary, it will not be discussed.

Reversed and remanded.