
    JAMES ET AL. v. DRAKE.
    (S. C., Thomp. Cas., 170-174.)
    Knoxville,
    September Term, 1858.
    1. BAILEE BY HIRING. Liability for gross neglect.
    Where the proof shows that vaccination is a preventive of smallpox, and that the bailee of a hired slave neglected to have him vaccinated, though he knew for some days or weeks before the slave was attacked with the smallpox, that the disease was in his family and among his other-slaves, for such negligence the bailee is liable to the owner for his value, if the slave dies of the disease. [See McNeill v. Brooks, 1 Yer., 73; Cain v. Kelly, 4 Hum., 473; Parker r. Thompson, 5 Yer., 349.]
    Cited with approval: Yeatman v. Hart, 6 Hum., 375, 378.
    3.SAME. Same. Not excused by bailor’s previous neglect.
    The fact that the owner, though an adult, had never had the slave vaccinated, will not discharge such bailee from the consequences of his neglect.
    3. REVERSAL. None for refusal to charge on point not material.
    The refusal of the circuit judge to charge the law upon a point about which the record does not show that there was any evidence to make the charge material, is no cause for reversal in the supreme court, and in such case the presumption is that such instructions were useless. [No reversal because circuit judg-e erroneously charg-ed upon pleas in support of which no evidence was introduced. Railroad v. Hays, 11 Lea, 383, 387. Nor for mere preponderance of evidence against verdict. Campbell v. Hampton, 11 Lea, 440. Nor for motion to quash warrant not stating grounds of motion. Railroad v. Reidman, 11 Lea, 305, 306. Nor for newly discovered evidence except for a clear case of error. Sommers v. Railroad, 7 Lea, 301, 306. Nor for correct judgment based upon incorrect reasons. Hughes v. Marquet, 1 Pickle, 137, ISO. Nor for mere omission to charge in civil case where no request for proper instructions was made. Railway v. Wynn, 4 Pickle, 330, 333. Nor meagerness of charge, if no request for additional instructions. Maxwell v. Hill, 5 Pickle, 584, 594 (citing cases). Nor for refusal to give requested instructions not strictly accurate. Railroad v. Acuff, 8 Pickle, 36, 37, 33-34.]
    4. SAME. Not for refusal of new trial, when.
    Where the circuit judge refuses a new trial upon affidavit of a witness disclosing- that he was mistaken in certain statements made in his testimony on the trial, the correction of which is not material to the merits of the case, the supreme court will not reverse for such cause.
    5. SAME. Not for' failure to arrest judgment for informality.
    Where an infant commences a suit by his guardian, and after several years the g-uardian dies, and, without the interposition of another guardian or next friend, judgment is recovered in the name of the infant, it cannot he arrested for this reason. Such informality is cured by the Act of 1852, ch. 152, secs. 4 and 5 (see now Code, sec. 4585, and sec. 6351), and the supreme court will not reverse.
    6. SAME. Not for minority unless pleaded, when.
    In such case if no guardian or next friend was interposed or ' required by the defendant, it will be presumed that the infant had arrived at ag-e when the trial was had and judgment was rendered, nothing else appearing. But anyway, it is a matter of abatement, and must be pleaded, or the question is waived. The supreme court will not reverse for such informality.
   Wright, J.,

delivered the opinion of the court:

This is an action on the case instituted by Henry C. Drake, an infant, by his guardian, Richard Hyde, against Thomas Gr. James and Thomas O. Simpkins, to- recover the value of a slave named Bill, the property of the plaintiff. This slave had been hired by the defendants for the year 1847, and used on the farm of the defendant, James.

It is stated in one of the counts of the declaration that through the negligence and imprudence of the defendants, •this slave was exposed to a malignant and contagious disease, known as smallpox, then existing and in action on the farm of the defendant, which disease fastened itself upon said slave and killed him in a few days thereafter. The proof shows that the defendant, James, was aware for some days, or weeks, before the negro Bill was attacked with the smallpox, that the disease was in his family and amongst his negroes, but did not have Bill vaccinated or inoculated, and he took the smallpox subsequently, and died in 1847, whilst in the defendant’s possession. The circuit judge, after instructing the jury as to the degree of care and diligence required of the bailee in this species of bailment, stated to them that if the proof showed that vaccination was a sure and probable preventative of the disease, and that the defendants had such notice of its approach, that with reasonable diligence, they might have procured the negro to be vaccinated, it was negligence in them not to- do it. The counsel for the defendants thereupon requested the court to charge the jiuy, that if they should be of opinion that vaccination puts a person in a condition during life to render smallpox innocuous to him, then it was the fault of the owner that the slave had not been put in that condition by him.

The court so declined to charge, but told the jury that however the law might be, if the plaintiff had been an adult at the time of the hiring (but as to which the court expressed no opinion), the fact that he and his guardian had failed to vaccinate the negro would not discharge the defendants from the consequences of their neglect, if they should believe from the proof, that ij; would otherwise have been their duty to have done so.

In giving these instructions, and refusing the instruction asked, the court committed no error.. The defendant, James, knew for some days or weeks before the negro was attacked, that the disease was in the family, amongst his negroes, and it was gross neglect in him not to< have had him vaccinated.

He was as much bound to protect the slave from danger, and the taking of disease, before he was attacked, as in the treatment of him afterwards. Yeatman and Armstead v. Hart, 6 Hum., 375-8.

The omission of the plaintiff, or his guardian, to inoculate the slave anterior to the hiring, furnishes no excuse whatever to the defendant. Even where one party is in fault, that will not excuse the other party, if by the exercise of ordinary care, he might still have avoided the injury, notwithstanding the fault of the first party. Here the defendant’s negligence was the’ immediate cause of the loss, and with the exercise of prudence, they might have prevented it, and the supposed negligence or omission of the plaintiff, or his guardian, bears too remotely upon it, to afford the defendant any ground of relief..

The court was also’ requested to charge the jury that, in a case of smallpox, which was contagious and deadly in its character, the defendants would not be held to the same diligence as in the case of other diseases, not contagious, and not involving risk to their personal safety by contact. -This instruction was also refused.

It refers to the treatment of the patient, after he was attacked with the disease, and was no doubt refused because the circuit judge considered that he had already sufficiently stated to them that the contagion and risk of personal danger were elements for their consideration in estimating the diligence of the defendants.

But if the proposition itself, in the shape in which it was pnt, were free from objection, and such as to demand ordinarily, a particular response, yet here the refusal of the circuit' judge can be no cause of reversal, for the reason that there is not in this record the least evidence of a want of care in the treatment of this slave after he was attacked. On the contrary, the evidence is that Ur. James remained on his farm during the whole time of the slave’s illness, and visited him several times a day. And besides, the whole evidence is not given, and in support of the action of the court, we must presume that the instructions were entirely useless in the case. Neither can we say that the circuit judge erred in refusing a new trial upon the affidavit of J. D. J ames. He disclosed in this affidavit, that when examined as a witness on the trial- of the case, he had stated that he had returned from the South in June, 1847, bringing home with him a negro girl named Kitty, and others; that he afterward had the smallpox; that the girl Kitty, some two or three weeks after his return, was sent to the house of the defendant to stay, and took, as he supposed, the smallpox; that since the trial he had examined his books and papers, and was satisfied he was in New Orleans as late as the 25th of July, 1847, and that he did not reach home before the middle of August, and that he could not have sent the girl, Kitty, to the defendant before the 1st of September, or perhaps a little later; and that in these particulars he was mistaken in his testimony on the trial. It does not appear to us from anything in this record that the correction of this mistake is at all material to the merits of the case, and we cannot reverse the circuit judge, who heard the whole cause, upon conjecture that he may have acted wrong.

During the progress of the cause the guardian died, and the suit was converted to a judgment in the name-of Drake, and it does not appear that he had any other guardian or next friend. Eor this supposed irregularity, a motion in arrest of judgment was made, which was overruled by the cricuit court.

In this there is no error. We cannot know but that the minor at the trial in 1859, had arrived at full age, and will presume the fact to be so, as no next friend was interposed or required by the defendant, especially when we consider the suit was instituted in 1850. Bui if this were not so, it was a matter in abatement, and should have been so pleaded, instead of going to trial upon the merits, and is at most a formal objection, and cured by the act of 1852, ch. 152, secs. 4 and 5.

Affirm the judgment.  