Summary
APPEAL PROM CLAY CIRCUIT COURT.
Tlic record in. this cause presents the following material fact. In September, 1848, the appellant was the owner of a slayo named Anderson, and the appel-lee was the owner of a slave named Henry. Anderson was by law subject to work on a certain road district in Olay county, of which one Edward M. Samuel was overseer. The said overseer had notified the appellant tQ send his said slave to labor on said road, which he accordingly did, both on Friday and Saturday. The appellant, being over forty-five years of age, was not subject to work on roads, and was not present on either day. About eleven o’clock in the forenoon of Saturday, the slave Anderson, as well as other laborers, were duly discharged from said road, at some point between the town of Liberty and the residence of the appellant. The road in question extends from said town by the house of the appellant to the steamboat landing of Major Turnham. The next that is seen of the slave Anderson, is at said landing, on the evening of the last mentioned day, and about twilight, he and the slave of the appellee engaged in a quarrel and fight, which resulted in the death of the latter. Thompson sues Ewing for the recovery of damages alleg’ed to have b.een sustained in the premises. His declaration is in trespass on the case, and is conceived in analogy to actions brought against owners, for injuries done by their animals of a dangerous and mischievous disposition. Ewing pleaded the statutory general issue. Upon the trial, the plaintiff below introduced testimony conducing to show that the slave Anderson was of a dangerous and murderous disposition, and that, with a knowledge of such disposition, the defendant below had negligently and unlawfully permitted said slave to go at large Without his possession and beyond his control, and that while so at large he had committed the wrong complained of .in the declaration. The defendant below then introduced evidence conducing to show that his said slave was not of the disposition imputed to him, and generally rebutting the former evidence. AftGr the evidence was closed on both sides, the court gave to the jury the following instructions : 2. If they believe from the testimony, that the boy, Anderson, the property of the defendant, was in the habit of becoming intoxicated, and drinking intoxicating liquors, and when so intoxicated, was of a quarrelsome, murderous and dangerous disposition, and defendant negligently suffered said boy to go off his farm, from under his immediate supervision or control, or under the immediate supervision or control of any one else ; and w'hilst so abroad he became intoxicated, and assaulted and killed a negro boy, the property of the plaintiff, and defendant knew of such habit of the boy Anderson beforehand, they will find for the plaintiff the value of the boy killed. 4. If the jury believe from the evidence, that the defendant kept a negro boy, Anderson, the property of the defendant, that said boy was in the habit of getting intoxicated, and when intoxicated was of a quarrelsome and murderous disposition, and the defendant knew the fact, and negligently suffered him to leave his farm ; and that said boy went to Turnham’s landing ón the Missouri river on Saturday, became intoxicated, assaulted and killed a negro boy, the property of the plaintiff, then they will find for the plaintiff the value of the boy killed.
The defendant below then prayed the court to instruct tlic jury, as follows : 1. That before the ' plaintiff can recover in this cause, he must prove the following four facts, to-wit: first, that the defendant’s slave in question was of a murderous disposition : second, that such murderous disposition wras known to the defendant: third, that with such knowledge the defendant unlaw'fully and negligently permitted said slave to go at large : and fourth, that whilst so unlawfully and negligently at large, the said slave committed the injury complained of in the plaintiff’s declaration. The proof of one or any of said facts is not sufficient to authorize a recovery ; for such purpose all must be proved ; and if the plaintiff has failed to prove any or either of such facts to the satisfaction of the jury, then they will find for the defendant. 2. That even a general, unlawful and negligent permission to go at large, will not, of itself, authorize the jury to find for the plaintiff. Before he is entitled to recover, he must show an unlawful and negligent permission to said slave to go at large at the time of the supposed injury ; and if the plaintiff has failed to prove that the defendant unlawfully and negligently permitted said slave to go at large at such time, and further, that such injury resulted from such permission, then they will find for the defendant. 3. That if the jury believe from the evidence, that on the day of the alleged injury, the defendant was required by law to send his said slave to labor on a public road or highway, and that such injury was done whilst said slave was absent from the defendant for that purpose, then the defendant was but complying with the requirement of law ; and from such compliance, the jury have no right to infer that he unlawfully or negligently permitted said slave to go at large on that day. 4. That if the alleged injury was done by the defendant’s slave, in question, while he was absent from the defendant for the purpose of laboring on a public road or highway, in obedience to the requirement of law; then, for any wrongs done by said slave, while so absent, the defendant is not liable. 5. That unless the jury find from the evidence that the injury complained of in this cause was committed by the slave in question, under the authority, or with the knowledge and approbation of the defendant, then they will find for the defendant. 0. That the law fixing the liability of owners for injuries done by their animals, either of a wild or tame nature, is not applicable to this case, in which it is sought to make the defendant, who is master, consequentially liable for an injury supposed to have been done by his slave. The relations of master and slave are analogous to those of master and servant at the common law, rather than to those of owner and beast, and the master cannot be held liable for wrongs done by his slave otherwise than upon the ground of an authority express or implied, except where a remedy is given against the master by statute. This suit is not brought upon the ground of an authority express or implied. The jury are therefore bound, in any aspect of this case to find for the defendant. 7. That although the jury may believe from the evidence, that other persons had seen the slave, Anderson in circumstances, and known him to be guilty of acts indicating a quarrelsome and murderous disposition, yet, unless they also find from the evidence, that the defendant knew there was dangar to the rights of others, in permitting Anderson to leave his premises and that he was disposed to commit murder and like crimes, when away from home, the defendant is not liable for the act complained of. 8. That such acts and conduct of the slave, Anderson, detailed in proof, as were never communicated to or known by the defendant and such rumors and reports about said slave as never came to defendant’s knowledge, cannot affect the defendant in this trial.
The fourth, in this scries of instructions, was given as prayed, and the others refused.
The court, of his own motion, then instructed the jury as follows : 1. That before the plaintiff can recover in this cause, he must prove the following four facts, to-wit: first, that the slave of the defendant, in question, was of a quarrelsome and murderous disposition ; second, that such disposition was known to the defendant; third, that with such knowledge, the defendant negligently permitted said slave to go at large, and fourth, that while so at large, the said slave committed the injury complained of in the plaintiff’s declaration. The proof of one, or any of said facts is not sufficient to authorize a recovery. For such purpose all must be proved ; and if the plaintiff has failed to prove any 'or either of said facts to the satisfaction of the jury, then they will- find for the defendant. 2. By themurderous disposition mentioned in the instructions, is meant a disposition which would prompt the negro, if unrestrained, to take the life of his fellow-being, and render it dangerous for him to be permitted to go at large with other negroes ; and to determine whether the negro had this disposition, they will look to all the facts and circumstances in evidence. The first of these instructions, thus given by the court of bis own motion, was in lieu of the first prayed by the defendant below as before stated. Exceptions were had to the instructions thus given upon the prayer of the plaintiff below, and to those given by the court of his own motion, as also to the refusal of the court to give those prayed by the defendant below. The trial resulted in a vez'dict and judgment for the plaintiff below. The appellant then moved in. arrest of judgment and for a new trial, which motions were severally overruled and exceptions taken. The cause is in this court by appeal.
1. The court erred in admitting all that part of the testimony of the witness, Yiotel, to the introduction of which exception was-taken. 1. Such testimony was but hearsay and without the sanction of an oath. 2. It was irrelevant. The issue presented by the pleadings, involved the inquiry whether the slave in question was of a murderous disposition and habit, but his other vicious dispositions and habits were foreign to that issue, and evidence tending to prove them ought to have been excluded. The defendant below is not presumed to have come prepared to rebut evidence of facts. 1 Qreenl. Ev. 62, 205. 2. The court erred in giving the second and fourth instructions prayed by the plaintiff below. These instructions assume that it was the legal duty of the appellant to have had his slave constantly under the supervision and control of himself or of some other person, and that for any wrong done by the slave under any negligent suspension of that supervision and control, the appellant is answerable. The other slave may have been in the wrong, either in an equal or less degree; he may even have been the aggressor ; and yet if the slave of the appellant was of a murderous disposition, and he, with knowledge of such disposition, negligently permitted his slave to go at large, and while so at large he killed the slave of the other, then the jury must find the value of the slave killed. The Roman law held the master liable for wrongs done by his slave ; hut at the same time, it gave nearly as full power over the slave as the owner at common law has over his animal. By the civil law, however, the liability of the master was limited to the value of the slave doing the wrong; and it was always in the option of the master to pay the estimate of the damages, or surrender the body of the slave as a recompense. If we are driven to the Roman law for the liability, let us adopt the whole of that law in reference to master and slave ; as well the measure of damages as the liability. If the master’s liability is to he ascertained by that law, then for his protection, give him the same power over- the life and actions of his slave which .that lav/ recognizes. It then follows, that the jury should have been told, that the measure of damages was the value of the defendant’s slave. Wheeler on Slavery, 236 ; Cawthorne v. Deas, 2 Port. R. 216. 3. The instructions given by the court of his own motion, are zzot perhaps sufficiezztly objectionable of themselves to demand a reversal of the judgment, but it is submitted that the first of those instructions was not called for, and presented the case in less satisfactory inanner than that for which it was substituted. The case did not require nor authorize the modifications volunteered by the court 4. The court erred in refusing the second and third instructions prayed by the defendant below. 1st. The second correctly assumed the law to be that the defendant was not answerable to the plaintiff for any negligence from-which the defendant had not suffered. To fix the defendant’s liability, it required proof of a wrongful permission of his slave to go at large at the time of the alleged injury, and that such injury nat-zzrally resulted from that permission. 2 Qreenl. Ev. 210, § 256; 1 Chitty’s PL, 428 ; 1 Bac. Abr. 68. 2nd. The third instruction naturally followed the second. It announced a rule of evidence necessary to the safe determination of the cause. 5. The seventh and eighth instructions, prayed by the defendant below, announce a rule of evidence and present the question whether the defendant was liable, without notice of his slave’s alleged disposition, and ought to have been given. Put the slave on the same level with the beast, and yet the owner is not answerable without previous notice of the particular vicious propensity. 1 Bac. Abr. 118; Vrooman v. Lawyer, 13 Johns. R. 339; 1 Chitty’s Pl. 94. 6. The verdict was against the instructions of the court. There is no fact in the case better proven, than that the slave, at the time of the alleged injury, was absent from his master* for the purpose of laboring- on a highway; and the jury were told, that in tliis event, the defendant was not liable. 7. The verdict is against the evidence. Besides, upon general principles, the plaintiff was not entitled to damages even from the gross negligence of the defendant, unless the former were himself free from culpable negligence. 8 Bac. Abr. 60. So if the proximate cause of the injury were the plaintiff’s own want of caro. 1 Bac. Abr. 109. 8. The declaration in this cause is fatally defective. If the defendant’s slave was a beast, mansuetae natura, and mischief resulted from his negligence, then, the remedy is case; and it must be averred in the declaration and strictly proved upon the trial that the slave was used and accustomed to do like injuries. Yrooman v. Lawyer, 13 Johns. R. 339; 3 Blacks. Com. 153 ; Bull. N. P. 77; 3 Chitty’s Pl. 597, note. If, however, the slave was fera natura, or naturally inclined to do mischief like that complained of, then the plaintiff’s remedy was trespass m et armis. 1 Chitty’s Pl. 94, 309. Is the defendant’s slave of the harmless or savage sort of beasts ? There was no averment that he was used or accustomed to do wrongs like that now imputed to him. It is however averred, that he was of a dangerous, mischievous, ferocious, savage and murderous disposition and nature. Thus, upon the plaintiff’s own showing he has misconceived his remedy, if any he had, and for that reason the judgment ought to have been arrested. 9. But the great question in this case is presented by the fifth and sixth instructions prayed by defendant below. Is the master, in any form of action, or under any state of case answerable for the unlawful and unauthorized wrongs of his slave ? It is submitted that no such liability exists, either upon principle or authority, except where, it is given by statute. Upon principle, First. If the master’s liability for the wrongs of his slave, is to be ascertained by the rulés which fix his liability for the wrongs of his animal, then for his protection, ho ought to be clothed ' with the same power over the former as over the latter. But this he has not; for cruelty to his slave, he is indictable. Rev. Stat. art. 8, § 39 of the act concerning Crimes and Punishments. Second. Such restraints upon slaves as are now urged, would render them as property wholly unproductive and worse than useless. Third. Slaves with us are persons as well as property, and are ■ so regarded and treated, both by the Constitution and laws of the United States and of this State. See Constitution U. S. art. 1, § 3, clause 3 ; § 9, clause 1; art. 4, § 3, clause 3. In this State, and in every State where slavery is recognized, they are regarded in this double aspect. As property, they are held to service and may be sold. As property, they are the subjects of bequests, and descents. As persons, they are amenable to the criminal law, and are-within the provisions of a criminal statute though not named. As persons, they are protected against the crimes of others, even the conduct of their master towards them, is regulated and governed by law. Upon authority, First. At the common law, the master is not answerable for the wrongs of his servant, unless done while in his actual employ, or under his authority, express or implied. 1 Chitty’s Blacks. Com. 344 and notes ; 3 Greenl. Ev. 53. Second. The Courts of the United States have held the master liable for the wrongs of his slave in analogy to the common law of master and servant only. Boyce v. Anderson, 3 Peters, 155; Clark v. McDonald, 4 McCord, 333; Wheeler on Slavery, 1 ; 3 Murphy’s N. Car. R. 389 ; Wings v. Smith, 3 McCord, 400 ; Wheeler on Slavery, 330 ; The State v. Francis Anone, 3 Nott & McCord, 37; Snee v. Trice, 3 Bay’s R. 345; State v. Dawson, 3 Bay’s R. 360 ; Wheeler on Slavery, 383; Cawthorne v. Deas, 3 Port. R. 376; Wheeler on Slavery, 338; 7 Smedes & Marsh. 348; 3 Sup’l. U. S. Dig. 387 ; 7 Vesey, 367. Third. Our Legislature has enacted, that for various -wrongs done by slaves, their master shall be civilly answerable to the party injured. Rev. Stat. 414, § 35. The statute evinces the legislative understanding, that by the common law, the master in such cases would not be liable. It is strictly remedial, giving a right of action where none previously existed. The suit at bar is not brought upon that statute, nor will it be pretended that the case comes within its provisions. Thus we have an appropriate subject for the application of the maxim, expi'essio imius est exclusio altarme. But this very case, in all its length and breadth, its bight and depth, has been determined by this court. Jennings v. Kavanaugh, 5 Mo. R. 36.
1. Whoever occasions another any damage, in any manner, through Ms omission to do what he ought to do, or through his negligence in doing what he lawfully may do_, must answer for the injury. 2. If a man have authority over another, and either expressly commands him to do an act, or puts him in a condition of which such act is the result, or by the absence of due care or control, negligently suffers him to do an injury, he is responsible for the act, as if it were his own act. Wayland v. Elkins, 8 Eng. Com. L. R. 84, note ; Dixon v. Bell, in note to 8 Eng. Com. L. R. 84; Littledale v. Lansdale, 2 H. Blacks. 267 ; Bush v. Strenman, 1 Bos. & Pul. 404. 3. Under our law, a master has dominion over the person of liis slave, except so far as the law expressly restrains him (State y. Mann, 2 Dev. N. Car. R. 263, cited in Wheeler on Slavery, 245), and by the civil law, and also by the law of Louisiana, is liable for every wrong done by his slave, without any reference to his own conduct. Cooper’s Just. 354, 357 ; Puffendorf, book 3, p. C ; 1 Domat. 305 ; Currier v. Lamberth, 9 La. R. But, although this is otherwise here (Jennings v. Kavanaugh, 5 Mo. R. 26 ; Rev. Stat. of 1845, p. 414, § 35), he is yet liable for the acts of his slave, upon the same principle and to the same extent, that the law subjects him to liability for the acts of those over whom he has control; and this is the principle on which the case was submitted to the jury, and the verdict found.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
