McGee v. Currie , 4 Tex. 109 ( 1849 )

LipscoMB, J.

On tlie trial there were several exceptions taken to charges asked to be given and refused by the court, and to charges given, and to testimony objected to by the defendant, but admitted by the court. There was a judgment for tlie plaintiff; from which judgment the defendant has brought the case into this court by an appeal.

Wc will only notice such points as are considered to be material. The plaintiff offered Bailey as a witness to prove an agreement or understanding, at the time of the hiring, that the owner was to pay the physician’s bill, if any should be raised. The defendant objected to the witness as incompetent on the ground of interest in the suit. The objection was overruled, and the witness allowed to give evidence. Bailey said that tlie negro had been hired by him as the agent of Hicks, and the negro was in the possession of Hicks when the services sued for were rendered. We cannot perceive any interest in the witness that would go to his competency. True he was jointly bound with nicks for the hire (o McGee, but it is not seen liow liis- liability conld have been increased or diminished by the result; of this case, whether Hicks or McGee should have to pay the money. There is nothing from which his liability could arise if it should be held that McGee, the owner of the slave, was not liable.

The second objection to testimony was to the admission of the plaintiff himself to swear for the purpose of proving his account, on the ground that the plaintiff had not brought himself within the provisions of the statute authorizing a party to give evidence in his own casci Section fifty-seven of the act to regulate proceedings in the District Court (Acts of 1846, p. 377) will be found to be as follows: “In the trial of appeals from Justices’ Courts, when cither party shall malee oath that he has no other evidence to prove any fact material to tlie prosecution or defense of his suit except his own oath, he shall be sworn and examined touching such facts; and the opposite party, in such cases, shall have 1 lie privilege of lining sworn as to tlie same facts.” From the bill of exceptions it appears that the defendant made, oath that lie knew of no one else by whom he could prove his account hut by William C. Ilicks; and by the representations of the deputy sheriff it appearing to the satisfaction of tlie court that the said Ilicks is, and was at the calling of the case, so beastly driiulcasto be unable to get to the court-house, and it appearing that said Hicks was habitually addicted to intemperance, tlie plaintiff was permitted to prove the fact of tlie truth of his own account by his own oath. The law allowing a man to swear in support of his own cause is an innovation on the rules of evidence, and it cannot be allowed unless he brings himself within the provisions of tlie statute oiled above. If the person by whom tlie same facts conld liave been proved was so drunk as to be inadmissible as a witness, and there was no prospect of his being in a bettor condition, the party might have safely sworn that he knew of no' evidence by which he conld prove the fact; but when he himself shows that Ilicks could prove the facts, and tlie canse of tlie incapacity of the person so referred to is not established bv the oath of any one, and merely on the. representation of tlie deputy sheriff, it can hardly be said that tlie spirit of the law lias been complied with. Tlie court should not have been satisfied of such incapacity by the representation of any one unsupported by oath.

The next point to he noticed is the charge of the judge to the jury, which was excepted to by the defendant. “ On tito triaFthc court charged the jury that in the absence of any special contract between the owner and the hirer of a slave, the owner would be liable for medical services rendered such slave during the time of such hire; that such was the law; but if the law was different, the owner would still bo liable upon a special contract to pay for such services.” This question was presented to the consideration of the Su-primió Court of Alabama at an early day in the case of Meeker v. Childress. A bill of exceptions taken on the trial in the Circuit Court shows fhat Childress, residing at Tuscaloosa, hired the slave for a year to Edward Smith, residing at St. Stephens, who called in the plaintiff, a practicing physician, to attend the slave. The court, on motion of the counsel for Childress, instructed the jury that Childress was not liable in law to pay said Meeker for said services, <fcc. "Verdict for the defendant. On error to the Supreme Court, Judge Crenshaw, in delivering' (ho opinion of the court, says: “IVe are of opinion that under such circumstances the hirer of the slave is hound to pay the physician for his services, and that the owner is not liable. If the owner,had requested the services of the physician, or if there liad been a special agreement between him and the hirer, it might vary the case. We are unanimous in the opinion that the judgmeut be affirmed.” (Minor R., 109.) The opinion of the Supreme Court of Tennessee iu the case of Neilsou, for the use of JEord, v. Gilliam is a strong case in support of the same doctrine. The case is briefly this: Gilliam hired from Ilord ids negro for one year. The negro fell sick, and Dr. Moils on was called upon, and as a physician gave his attention to the case. • Hord, as an accommodation to Neilsou, paid the amount of his'bili. Gilliam refusing to pay the money to Ilord that he had advanced, Ncilson brought this suit by warrant, and judgment was rendered for the defendant in the Circuit Court, where it. had been carried by appeal. Judge Peck,-in giving the opinion of the Supreme Court, says: “It is not questioned but that Gilliam was bound to pay for medical services rendered to said slave, being the property of Gilliam for one year under the hire. (4 Hay. R., 11.) The money advanced by Hord was so much paid, laid out, and expended for Gilliam’s use.” The same doctrine lias Ticen flnnly sustained by repeated decisions of the Supreme Court of Kentucky. (1 Bibb R., 536; 1 Litt. R., 15; 3 J. J. Marsh. R., 708.) It is believed "(líese decisions are well sustained by the principle expressed in the opinion in the case cited from 7 Yerg. R.: that for the time the hirer is the owner of the slave. B.v the hiring the property in believed tobe so completely changed that the negro could not be taken in execution for a debt of the owner until the, expiration of the time for which lie was-hired, unless the lien liad attached before the transfer of iDossession by hiring.

I believe the court erred in its charge as given to the jury, and for this error the judgment ought to be reversed and the cause remanded.

Judgment reversed.