27 N.C. 438 | N.C. | 1845
The defendant, being an administrator, hired to one P. F. Long, for 1843, a slave belonging to the estate of his intestate. During the year the slave was taken sick, and P. F. Long, without the consent or knowledge of the defendant, called on the plaintiff, who is a physician, to attend the slave, and he did so. Upon application to the (439) defendant for payment he refused it, upon the ground that he was not liable therefor; and the plaintiff then brought this action for his bill for medicines and attendance, which is admitted to be reasonable. Uponnon assumpsit pleaded, the court nonsuited the plaintiff, and he appealed to this Court. We think the decision of his Honor good at law. It need not now be decided which of the two, the person by whom a slave was hired out or the person to whom the slave was hired, as between themselves, is bound to provide or pay for the requisite medical attendance during the term. The only question in this case is, whether the physician is to look to the person who employed him for his bill, or is at liberty to charge another person, who did not employ him or have any knowledge of the sickness of the slave or of the plaintiff's attendance. We think very clearly the former. If, indeed, the slave had not been hired out the owner would not be liable for the physician's bill unless there was a request of the owner or a subsequent promise to pay. At least that must be the general rule; though it may be liable to an exception, that where it is a case that may be called one of life and death, or there is a pressing necessity for immediate assistance, the master would be liable for the attendance that was indispensable before there was *312 a reasonable time and opportunity for notice to the master. But, unless in a case of that kind — if even in that the services of the physician without the request of the owner, and at the instance of the slave or any one else, must be deemed gratuitous in respect to the master. So it was decided in New York, in Dunbar v. Williams, 10 Johns., 249. And even the exception just stated, which is admitted in that case, is very far from being established by authority, as will be seen by the cases cited in Dunbar v. Williams and by Newby v. Wiltshire, 2 Esp., 739. (440) Lord Kenyon held, indeed, at nisi prius, in Scarman v. Castill, 1 Esp., 270, that the master was liable for medicine for his servant while in his service, upon the same ground that he was bound to provide food and lodging for him. But surely, if liable at all, he ought not to be until notice of the necessity and his refusal or neglect to provide proper attendance and medicines. But the very reasons given in that case show, that the plaintiff cannot recover; for the liability is confined to the case in which the servant is under the master's roof as a part of his family, and put upon the same footing as that for necessary food, thus placing the legal liability in this case upon the person in possession of the slave, who was also the employer of the plaintiff. In this court there has been no case of this kind before, for we believe it has never been suggested hitherto that the reversioner, if he may be so called, merely as such, was liable for medical services to the slave more than for his food while hired out, where they had been rendered, not at his request, but at that of the possessor. The question, however, we find has been made in an adjoining sister State, whose social condition is similar to our own. InWells v. Kennerly, 4 McCord, 122, the court of appeals in South Carolina held that the general owner was not liable for the doctor's bill, either by the rules of law or the policy of the country, for that person had no more right to throw the expenses of the negro's sickness upon the general owner than to an abatement of the hire during the period of sickness.
It is said, however, here it is different, because by the act of 1798, Rev. Stat., 89, secs. 18 and 19, the support of the slave is imposed on the owner. But that act cannot affect this question, for it is confined to provisions of food, raiment, and lodging, and these are unquestionable charges upon the possessor, unless in a case of a fraudulent hiring by a solvent to an insolvent person with a view to throw the expense of support on the wardens of the poor. Besides, the act expressly requires the wardens to give the owner ten days notice to provide for (441) the slave himself before they can do so and charge him. So in no point of view is the act applicable here.
PER CURIAM. Affirmed.
Cited: Jones v. Allen, post, 474; Haden v. R. R.,
