
    Dr. W. B. Peake vs. Fred. Scaife.
    
      Bailment — Contract—Hirer ’and Letter to Hire — Physician's Bill.
    
    A physician who attends slaves at the request of the hirer, cannot sue the owner for his bill — there being no privity of contract between them —even though the owner agreed with the hirer that he would pay all physician’s bills.
    In such case the hirer should pay the bill, and he then would have the right, it seems, to resort to the owner upon their contract, ()
    BEFORE WARDLAW, J., AT UNION, FALL TERM, 1858.
    Tbe report of bis Honor, tbe presiding Judge, is as follows : “Assumpsit for medical services rendered to slaves of the defendant.
    “ To prove tbe items of account, tbe plaintiff was sworn and adduced bis book. The book showed enterics in this form: “ 1857, Eeb. 5. Attendance on Manuel, $5,00.” The bill of particulars, which was filed, consisted of items in this form: “1857, Eeb. 5. Visit and prescription for Manuel, $2,00: mileage, $3,00.” One of the items was $15, for attention on the same day to different slaves.
    “ In aid of the plaintiff’s testimony, an overseer, who sent for him, testified that he witnessed the services which were rendered, and thought that, according to the rates that he was told physicians charged at, they would amount to $115, the sum claimed by the plaintiff.
    “ J. T. Jeter, testified. — In December, 1854,1 proposed to hire fellows from the defendant to work on the Spartanburg and Union Eailroad : offered him $156 a piece, “ I to find clothes, &e., and lose all time, he to pay the. Doctor’s bill.” He said he would let me know in a few days. Some weeks afterwards he said that I’ might have the fellows. I gave him my note for an amount corresponding with my proposal, saying nothing more about terms. I placed the fellows under an overáeer on the railroad, along with others that I had hired, telling the overseer to employ a physician, in case of sickness, upon the best terms practicable. I continued to keep the fellows, and had them in 1857.
    
      “ The overseer testified — I had thirty-two fellows under me ; ten or twelve of them belonged to the defendant. According to the directions which Mr. Jeter gave me, I sent for the plaintiff, the nearest physician I knew of. I sent only when it was indispensably necessary. All of the defendant’s fellows were sick in the course of the time. One of them, Eriday, was hurt between two cars : another, Manuel, was hurt by a bar of iron. The defendant gave me no directions, and did not know any thing of the services rendered by the plaintiff.
    
      “ A witness was offered to show, not a custom, but what Mrs. Sims had done in relation to some fellows of hers that were hired to Jeter. This was excluded as irrelevant.
    
      “ I ordered a nonsuit, mainly for want of privity of contract between the parties, according to tbe case of Wells vs. Kennerly, 4 McO. 123. If any distinction should have been made, in respect to slaves casually hurt, the testimony did not afford the means of making it in safety to the plaintiff.”
    The plaintiff appealed and moved this Court to set aside the nonsuit on the grounds:
    1. Because from the evidence given in the cause, the defendant was legally and morally bound to pay the plaintiff the full amount of his demands.
    2. Because the plaintiff was clearly entitled to have recovered for all such services as were rendered to tbe negroes, under calls on sudden emergencies.
    5. Because his Honor rejected evidence offered by the plaintiff going to show the usage and custom of tbe country as to tbe payment of tbe doctor’s bills, for hired negroes, wbicb would have shown that it was the custom for the owner to pay medical bill.
    
      Thomson, for appellant.
    -, contra.
    
      
      
        (a) In Wells vs. Kennerly, 4 McC. 123, there was no proof of any agreement as to who should pay for medicines and medical services furnished the slaves, and that case would seem to have been decided on the ground, that in the absence of such an agreement the hirer must pay for them; but there are authorities to the effect that in such case the owner must pay, and Wells vs. Kennerly, is not a direct authority on the point. By the general law of Bailment, the hirer is owner of the slave for the term, and bound to use him well and take care of him, 2 Kent Com. 586. lie must provide the slave with suitable food and clothing; Sims vs. King, 18 Ala. R. 236; and with shelter, also, it is presumed; but there are strong authorities to the effect that the owner must pay for medicines and medical services. If a horse be taken sick without fault on the part of the hirer, expenses for medicines bona fide incurred are to be borne by the owner, or letter to hire. Story on Bail. ? 384; 13 Johns, R, 211; and a recent writer says, “ There is no implied agreement that one who hires a slave shall pay for medical services and attendance upon him in sickness.” Edw. on Bail. 329, citing Isbel vs. Noriell, 4 Grat. R. 176; but see 5 Mun. R. 359; 1 Bibb. R. 536; Hen. & Mun. R. 5. “Such expenses are tobe deducted from the hire as in the case of a horse bailed for hire.” Edw. on Bail* 329, citing 3 Barb. R. 380. The hirer had better not prescribe himself for he may become liable if he does so, Dean vs. Keefe, 3 Camp. 24. R.
    
   Tbe opinion of tbe Court was delivered by

O’Neall, J.

It is true in Wells vs. Kennerly, 4 McCord, 123, it is said that medical attendance on a slave hired, may be the subject of contract between the owner and the person hiring: and such a course is recommended as the bill can be deducted from the wages. Beyond all doubt that case in its leading principle, that 'the master is not by law liable for the physician’s bill, who attends bis slave while in the possession of the person hiring, and at his request, or in the ’exception before pointed out, does not sustain the plaintiff’s case.

Jeter, who hired the slave, and who by his overseer called in the plaintiff, is liable for his bill. It maytbe that he (Jeter,) can recover the amount of it after paying it, from the defendant. Between them there is privity of contract: but between the plaintiff, and the defendant, there is none.

The motion is dismissed.

Wardlaw, Withers, Whitíter, G-loyer and Munro, JJ., concurred.

Motion dismissed.  