
    Wiley Harrison vs. William B. Lloyd.
    The bailee of a slave hired him to the defendant and the slave was killed while in defendant's service, through the negligence of his agent: Held, that plaintiff, the bailee, could sustain an action against the defendant for the injury he had sustained, and that case was the proper form of action.
    Where the bailee of a slave has a right of action against defendant through whose negligence the slave was killed, and such bailee is accountable to the general owner and pays him the value of the slave before action commenced against the defendant, he, the bailee, may recover from the defendant the full value of the slave.
    BEFOBE WABDLA'W, J., AT ABBEVILLE, JULY, EXTBA TEB3VI, 1855.
    The report of his Honor, the presiding Judge, is as follows:
    “ Case to recover damages for a man slave, named Dabney, alleged to have been hired by the plaintiff to the defendant, and to have been killed whilst in the employment of the defendant, through his negligence or improper use. Plea, the general issue.
    “The defendant took a lease of land adjoining Dorn’s Gold Mine, for which he gave his own notes; he made contracts concerning operations to be there conducted in his own name: he appointed Dr. Stephens as agent in his absence, and mining was there carried on, which was spoken of as the work of a company. Some of the witnesses called the company the New York Company; some the Dorn Mining Company; some the Gold Mine Company. The chief engineer had heard the name of no member besides the defendant; Dr. Stephens mentioned two others; but it did not appear that any besides the defendant had ever been seen in the neighborhood.
    
      “ In the summer of 185-3, White, the overseer of plaintiff, hired to Stephens, agent, four negro fellows, at, the ordinary price of field laborers. White testified that the contract was that these fellows should work in the mine, and that then the work in the mine consisted simply of digging, there being no machinery employed. Stephens testified that they were to work at the mine, and that there was no specification concerning the nature of their employment. Within a month or two after their hiring, a steam engine; was put up at the mine, for crushing rock, and Dabney’s usual employment was shovelling sand, cutting wood, pounding stone, and the like. The other fellows were removed, and at that time Stephens, when asked about his choice amongst the fellows, said to White that, for the uses he needed a fellow for, Dabney was as fit as any other: he was then turning a windlass in digging a well. Dabney was not bright, but was very obedient to any one who undertook to direct him.
    “ In September, 1858, on a rainy day, Dabney was engaged near the engine, shovelling .sand when it was not raining, and pounding stone when it was. The engine was stopped, and Nolan, the chief engineer, was making some adjustment of the machinery in the lower room, Dabney went down to wedge his hoe. Nolan told him to tell Huffman, another engineer, to start the engine. Dabney did as directed, and Huffman let on the steam; but the large fly-wheel, being on a balance, stopped on the centre, (as it was expressed,) and would not turn at the movement of the piston. Huffman told Dabney to pull the wheel down. Dabney caught hold and pulled, but still it did not move. Huffman told him to pull harder. Dabney swung to the wheel, raising both feet, and jerked; the wheel started with great velocity, and he was carried under, and instantly killed.
    “ This condition of the wheel frequently occurred. To start it required care, but was not by those used to it considered very dangerous. Several of the hands had done it — whoever happened .to be near when the service was required: but Dabney had not been known to undertake it before.
    “Dabney belonged to H. Quarles’s estate, of which R. M. Fuller is representative. He had been hired for the year 1853 to the plaintiff. In January, 1854, the plaintiff paid to Fuller seven hundred dollars for Dabney, the appraised value; and in February, 1854, this action was commenced.
    “I submitted all the facts to the jury — amongst others, whether Dabney had been hired by the defendant, and whether his death had resulted from negligence of the defendant’s agent, or from the improper use of him.
    “ I directed that if the facts should be found as above stated, and a verdict be rendered for the plaintiff, the value of the slave would be the proper measure of damages.
    “ The jury found for the plaintiff seven hundred and fifty-six dollars.”
    The defendant appealed, and now moved this Court for a nonsuit and a new trial, upon the following grounds, viz.:
    For a nonsuit:
    1. Because trespass, and not case, was the proper form of action:
    2. Because the hirer of a slave- for a year cannot maintain an action on the case for an injury resulting in the death of the slave during the period of hiring:
    3. Because case, by the owner of the slave Dabney, was the proper form of action.
    For a new trial:
    1. Because the death of the slave was the act of God, and not caused by any culpable act or negligence of the defendant:
    2. Because the order to the slave Dabney to weigh down the wheel was, if wrongful, the sole act of the engineer,' Huffman, who had no authority to’ extend such an order:
    3. Because the proof was that Dabney was hired by the Dorn Mining Company, and not by the defendant individually:
    
      4. Because the verdict was excessive, being for the whole value of the slave; whereas the verdict should have been limited to the value of the time of the slave lost to the plaintiff:
    5. Because the verdict was contrary'to law and the evidence.
    
      Fair, for appellant,
    cited on first ground for nonsuit, Helton vs. Oaston, 2 Bail. 95; Tennant vs. Bendy, Dud. 83 ; 1 Chit. PI. 145; and on third ground, 1 Chit. PI. 70. The value of the services of the negro for one year is the measure of damages. Morris vs. Thompson, 1 Rich. 65; Laney vs. Bradford, 4 Rich. 1.
    
      McGrowen, contra.
    Plaintiff was liable over for the value. In such ease he is entitled to recover the value, 2 Saund. 47; 15 Conn. 302; 18 Pick. 278; 6 Johns. R. 195; 10 Mass. R. 125; 7 Cow. 297; 2 Bail. 470.
    
      Thomson, in reply.
    No proof that plaintiff was liable over except that he paid. Can that add to defendant’s liability ? No act of plaintiff’s, after the right of action accrued, can give him a right to higher damages : 4 Rich. 329; 2 McM. 405.
   The opinion of the Court was delivered by

Wardlaw, J.

The earnest and ingenious arguments which have been addressed to the Court in this case, have given to some of the grounds of appeal an importance disproportioned to any intrinsic difficulty in the points which they present. After due consideration we are of opinion that case is the proper form of action for the unintentional injury done by the defendant’s agent, whence consequential damages have resulted to the plaintiff: that a person, who, under a contract of hiring, has a temporary interest in a slave, may have an action for an injury to that interest, whether death was involved in tbe injury or not: that even if tbe general owner should have a right of action to recover for the injury to the reversionary interest, the action of the temporary owner is not thereby taken away: that negligence or breach of duty on the part of the defendant has been established by the verdict: that the negligence, or wrong, not wilful, of an agent, in the performance of his principal’s work, makes the .principal liable: that the contract of hiring, it has been found, was made with the defendant singly and not with him and other persons, and on this head tbe verdict is conclusive and saves the necessity of all inquiry into the right of the defendant to object, in this action ex delicto, to the nonjoinder of other persons as defendants : and that the verdict is sufficiently sustained by the evidence.

The fourth ground taken for a new trial is the only one worthy of much attention. It denies the propriety of the instructions given that the plaintiff here might recover the whole value of the slave; It is argued that the plaintiff has lost only a few months’ service ; that Fuller, the general owner, may have sustained serious loss, but the right of action in him could not be transferred to the plaintiff; that even if a special bailee accountable over may recover the whole value, there is no evidence to show that here the plaintiff violated his contract with Fuller by hiring to the defendant, or otherwise made himself accountable for the loss which without blame to him has resulted; and that the payment said to have been made to Fuller, if it really was made, gave to the plaintiff no higher rights than he had before.

Several of our cases (see Morris vs. Thompson, 1 Rich. 65; Laney vs. Bradford, 4 Rich. 1,) have held that in trover a tenant for life of slaves could recover against a stranger only the value of the interest for life. The tenant for life in these cases was not accountable to the remainder-man for the conversion of a wrong-doer; indeed, he did not hold under contract with the remainder-man, or under title derived from him.

He who hath the special property in goods in an action against the general owner can recover only according to the value of the special interest: but in actions against a stranger the general rule.is, that he who hath the special interest may recover the whole value because he is chargeable over. Heydon and Smith’s case, 13 Co. Rep. 69; Rooth vs. Wilson, 1 Barn. & Ald. 59; 2 Saund. 47; 5 Binney, 460.

Even where a bailee and the general owner are both entitled to actions for recovery of the whole value, Flewellin vs. Rave, 1 Bulst. 89, is an authority to show that he who first begins his action shall go on with the same; and White vs. Webb, (15 Conn. 303,) recognizing this, holds that where the bailee recovers the'whole value he is for the excess over his own interest, a trustee for the general owner.

Contests may, however, arise between the general owner and ■the bailee, concerning the right of the latter to conclude the formen by a recovery of the whole value, which have not been adjudged in our courts; and it is, therefore, not advisable that we should go beyond the circumstances of the case in hand. Here the acknowledgment which the general owner before action brought, gave of satisfaction made to him by the bailee, precludes all objection which might be urged against the plaintiff, on the ground of the defendant’s further liability to a third person; and the adduction by the plaintiff of that acknowledgment, made in a form which shews payment by the plaintiff, is of itself strong evidence that the plaintiff was, in the ease that existed at the time of the payment, liable over to the general owner. When to that evidence are adduced the circumstances that plaintiff was 'an agriculturist and the slave a field ha,nd, that the hire paid for the slave by the plaintiff, and by the defendant was conformable to the usual wages of a field hand, and that after the machinery was set up the slave was permitted by the plaintiff to 'remain at the mine, the accountability of the plaintiff seems to be sufficiently established.

It is upon this single ground, of the plaintiff’s accountability over coupled with his payment according to such accountability, that we now rest his right to recover the full value. It has been urged in his behalf that, independent of this ground, his right may be sustained by reasoning like this: The action is ex delicto, but is founded upon a contract of hiring by plaintiff to defendant, out of which arose a duty which the defendant violated by employing the slave in derogation of it; as to this contract there is no privity between Puller and the defendant, and, therefore, the plaintiff only can sustain an action for defendant’s breach of the duty.- It may, however, be, that in an action by Fuller,' the plantiff would have been regarded as Fuller’s agent in making the stipulations ouyj£¿p^sefe«*$®s$e the defendant’s duty. jv %. Wf Aj? >\

The motion is dismissed.

O’Neal, Withers, Whitner, Glover, and Munro, JJ., concurred.

Motion dismissed.  