Trotter v. McCall

26 Miss. 410 | Miss. | 1853

Mr. Justice Handy

delivered the opinion of the court.

This was an action brought by the appellee against the appellant, to recover dámages for the detention of a slave hired by the appellee from the appellant, for the year 1850.

It appears by the record, that in the month of May of that year, the slave threatened to run away from the appellee, for which he whipped her, and she afterwards ran away, and went to the appellant for.protection; who refused to deliver her to the appellee, for the reason that the appellee had whipped her in a cruel and unusual manner, and threatened to whip her again when he got her into his possession. It was proved that the detention of the slave was a material injury to the appellee in the cultivation of his crop; and there was also testimony tending to prove that the whipping was a serious injury to the slave, who was then in a delicate condition peculiar to females, and that a repetition of the punishment would have been dangerous. In this state of the case, the appellant offered a witness to prove, in .mitigation of damages, that the valpe of the slave had been materially injured by the cruel and unusual treatment of her by the appellee, which was objected to, and the objection sustained; and this constitutes the error here complained of.

It is not easy to pereeive upon what ground this testimony was refused; for the court granted an instruction at the instance of the defendant, to which it was directly applicable. The action was for damages sustained by the improper detention of the slave. If it could be shown, that by the cruel and unjustifiable treatment of the plaintiff, a permanent injury was done to the slave, diminishing her value, it was proper to be submitted to the jury for their consideration, and the defendant was entitled to the benefit of it, if proved to the satisfaction of the jury, either in diminution of the plaintiff’s damages, or as preventing his recovering anything, as the jury might think proper from all the evidence.

When a party hires a slave, he comes under an implied obligation to treat the slave with such care and moderation as an ordinarily prudent master would use towards his own slave. Jones on Bailm. 88; Story on Bailm. § 413. Should this obligation be violated by the hirer, and the slave be driven, by his cruel treatment, to seek the protection of the master, and come to his possession peaceably and without his procurement, the master would be justifiable in refusing to surrender the slave to the hirer, if the slave had been already materially injured in value by the abuse and cruelty of the hirer, and there was just ground for believing that if given up,'the same course of treatment would be continued to him. The violation of the contract of hiring on the part of the hirer, would justify the master in treating the contract as at an end. Story on Bailm. § 396.

But in taking this course, the master must take the hazard of proving, to the satisfaction of the jury, that the circumstances were such as to justify him in putting an end to the contract, such as ill treatment impairing the value of the slave, great abuse, or cruel punishment. The burden of this proof rests, of course, upon the party alleging this state of facts; for, subject to the express and implied obligations of the contract of hiring, the hirer becomes the owner of the slave during the term of hire.

The judgment is reversed, and the case remanded for a new trial.