
    Philips v. O. M. Wheeler.
    "Where the plaintiff sued the defendant for the value of a slave who received an injury which caused his death while employed by the defendant, as the plaintiff alleged, in cleaning out a well, without authority from the plaintiff, and it was in proof that the plaintiff’s slave and a slave belonging to a third person were cleaning out the well at the time of the-easualty, and the defendant offered to prove that it was customary for slaves to assist one another in jobs undertaken by them about town, it was held that the evidence was properly rejected as being too remote and uncertain.
    Where the court charged the jury that if the negro Will was engaged in cleaning out the defendant’s well with the knowledge, consent, or procurement of the defendant, without the knowledge or consent of the plaintiff, his owner, and the negro was injured in the well, they must find for the plaintiff whatever damage he has shown himself to have sustained thereby: Held, There was no error.
    See this case for a misapprehension occasioned by a partial use of a common-law court in. assumpsit, amended so as to be specific enough to conform to our practice.
    In order to hold a party responsible for injuries which happen to a slave while in his employ, without the authority of iiis owner, it must be proved that the defendant employed the slave or authorized him to be employed, but such employment need not necessarily lie proved bydiroetand positive evidence, but may be sufficiently established by proof of such circumstances as either necessarily or naturally lead to that conclusion.
    Whore a party alleged surprise as a ground for a new trial, bub it was evident that the surprise was owing to a misapprehension of the law of the case by his counsel, this court refused to reverse the judgment overruling the motion for a new trial.
    See this case for facts which warranted tho jury in finding that the defendant had employed the slave of the plaintiff, or authorized Him to be employed at work for him, during winch employment lie received an injury which caused his death.
    Appeal from San Augustine. The appellee brought suit against the appellant to recover the value' of a slave, alleging that the slave escaped from his possession, and was converted by the defendant to his use; that the defendant employed the slave at work in a well upon his premises; and that while so-employed and at work the slave received an injury by which he was rendered worthless to the plaintiff, and of which he died; that the defendant,. being liable, promised to pay the plaintiff the value oí the negro, which he refused to do, “by means whereof a right of action hath accrued to petitioner, “and having sustained damages to the amount of fifteen hundred dollars, he “brings suit,” and prays judgment “ for the full value of the said slave Bill, “and for all such damages as may have been sustained in the premises ” by the plaintiff.
    At the trial the plaintiff amended his petition, averring the loss of the negro out of his possession, and that he came into the possession of the defendant, who knowing (lie slave to belong to the plaintiff' neglected and refused to deliver him to tlie plaintiff, and conducted himself so carelessly and negligently in regard to the negro that the same was killed while in his possession. The answer contained a general denial. It was in evidence that during tlie week previous to tlie injury complained of, a negro (Jack) liad been employed by the defendant at work by tlie day; that on Sunday, tlie day of the accident, a witness met tlie defendant going from his house for a rope to draw the plaintiff’s negro out of iiis well; tlie witness went to the defendant’s house; saw the negro Jack and several other persons at the well; tlie plaintiff’s negro Bill was drawn out of the well much injured, which seemed to have been occasioned by tlie breaking of the rope, which caused a bucket of mud to fall on liis head. Tlie negro Jack had the appearance of having been at work at the well, which appeared to have been recently cleaned out. The plaintiff’s negro died of the injury.
    . There was evidence offered by the defendant to prove that it was customary for negroes to assist one another in jobs undertaken by them about town, which evidence was rejected. The court instructed the jury “That if they believed 41 from the evidence that the negro Bill was engaged in cleaning out the defendant’s well with the knowledge, consent, or procurement of the defendant, “without the knowledge or consent of Wheeler, tlie plaintiff, and that the “ negro was injured in the well, they must find for the plaintiff’whatever “ damage he lias shown himself to have sustained thereby.”
    There was a verdict for the plaintiff. The defendant applied for a new trial, on the ground of surprise and newly-discovered evidence. The court overruled the motion and gave judgment for tlie plaintiff, and the defendant appealed, and assigned as error the rejection of evidence, the charge of the court, and the refusal of a new trial.
    
      O. M. Roberts, for appellant.
    The charge was not pertinent to the issue. Felonious Injury, (7 Bacon, 672;) Conversion, (7 Bacon, 792;) Trespass for Wrongful Taking, &c., (1 Cliitty, 175.)
    Where circumstances negative tlie assumption of right or exclusive dominion, it is not a conversion. (1 Cliitty, 175, 178; 7 Bacon, 792.) Where pleading and proof do not correspond, it becomes a defect in the merits of a cause. (oNerger, .'394.)
    ISTew trial should have been granted. Charge of court if not erroneous was calculated to mislead jury from-true issue. (Minot’s Digest, 515.) Tlie judge trying should bo reasonably dissatisfied with tlie verdict. (3 Blackstone, 387.)
    When Supreme Court can clearly see that court below under the circumstances should have granted a new trial they should remand. (U. S. Sup. Dig., Vol. 2, 434, sec. 103, and many subsequent eases referred to here.)
    In case of accidental injury the evidence should be reasonably conclusive to transfer tlie loss from the owner to third person. (Bice v. Cade, 10 La. B., 2SS; 2 Yol. Suppl. IT. S. Dig-., p. 422, see. 273.)
    Deficiency of proof. (6 Johnson, 44; 12 La. B., 167; 6 Serg. & Bawl. B., 466 ; 3 Johns. Dig., 435, see. 71; La. B., 1848.)
    Surprise of party in law and fact. (2 Kinne Law Comp., pp. 269, 273; 7 Bacon, 7S4-5; 9 U. S. Dig., Ill.) Mistake of attorney of defendant as to plaintiff’s title. (12 La. B., 162; 11 Id., 521.)
    
      Testimony was improperly excluded, because defendant should have been allowed (in the absence of any direct testimony against him) to have proved any fact which would have tended to account for the presence of the negro on his premises otherwise than by his procurement.
    
      Henderson & Jones, for appellee.
    It cannot be seen what prejudice the action of the court, in rejecting the evidence offered, occasioned the; appellant, or what cause of complaint ho‘has to its ruling. In the; first place, the evidence was entirely too weak lo constitute any proof, since, if (rue, it could afford no-presumption that the slave that was killed, who was engaged in cleaning- out the appellant’s well on the appellant’s premises, and hi the very yard of his dwelling-, was employed to do so by the oilier slave, who was engaged in the same work without the appellant’s knowledge and authority. Oil tlie contrary, the recited circumstances would raise the presumption that lie was employed by tlie appellant under his request or orders. And in addition to this tlie other slave ivas proved to have been employed by the appellant; wherefore the presumption that the deceased was so employed also amounted to that degree of confirmation which could only he rebutted by the very strongest evidence.
    In the second place, supposing- it to have been true tiiat the slave who was killed was employed by tlie other to do the appellant’s work, yet if this was done with the appellant’s knowledge and consent, or with the knowledge amt consent of his household, who must be supposed to have authority from (lie appellant to act for him in things of this kind, it is not seen how this would have lessened the appellant’s liability. It would, moreover, lead to very hurtful results to establish the doctrine that a person may permit the employment of Ills neighbor’s slave, who lias no liberty or freedom, in and about his work without tlie knowledge and authority of the master and not be responsible for tlie consequences. ’ In teaching so much disrespect for property there would ho left for it very little protection.
    Again, if tlie slave who was killed was engaged by tlie other slave, yet as his assistance was absolutely necessary in the work in which they were employed, is not the authority of the person about whose work they were employed to bo presumed to be given to the one whom lie himself employed to employ the other? Certainly so; then, as “ qui facit per alium, facit per se,” the appellant was as responsible as if the employment had been by himself.
    II. Why was tlie charge of the court not applicable ? The complaint was for the conversion of tlie slave who was killed whilst engaged in the defendant’s work, set out possibly a little two much in the common-law style, but nevertheless substantially and sufficiently set out. (Erosh v. Swett, 2 Tex. K., 485.) And the answer was a general denial, and it is hard to discover in what the charge was inapplicable to the issue.
    As to the correctness of the charge (about which, however, no question is raised) reference is made to 2d Greenleaf’s 'Ey., see. C42; 15 Petcrsdorf, p. 196,7, and note; 6 Dun. & East, 298; Spencer v. Pilclue, 8 Leigh, 565; Glare ». McMillan, 7 Porter, 297; St. John v. O’Connell, Id., 406; Railroad Co. v. Tliidd, 7 Dana, 245; Johnson v. Weedmau, 4 Seam. It., 495; U. S. Dig-. Sup., vol. 2, p. 879, secs. 118, 332, p. S80, secs. 138, 139; Gray v. Croohmer, 8 Port. B., 191; Phillips’s Dig-., p. 579, secs. 389, 40-41.)
    III. The first four grounds in tlie motion for a new trial are—
    1st. Because the jury found contrary to law.
    2d. Because tlie jury found contrary to the evidence.
    3d. Because tlie jury found contrary to the charge of the judge.
    4th. Because tlie court misdirected the jury in instructing them that in the absence of any proof as whether a negro had or had not a pass, there was no-presumption either in favor of or against his having one.
    These four grounds it is hardly necessary to consider.
    
      The fifth and last ground in the motion is, “because the said defendant “lias since the trial of this canse discovered new testimony, unknown to him “ before the trial of said cause, by which, if allowed to introduce on another trial “he can materially and entirely change tlie verdict herein rendered.”
    Two remarks may be made of tlie whole newly-discovered evidence stated in. the affidavit appended to the first mol ion for a new trial. 1st. It is not stated that (lie appellant used any exertion or diligence to ascertain this testimony before the (rial; and yet it appears that it. was all at hand and was easily learned and gathered after the verdict. 2d. The evidence is not material and can scarcely wnrra nt tlie presumption that it would change the verdict. (Madden v. Shepard; Pdriugton v. Kiger, 4 Tex. It.; Welsh v. Narboe, 1852.)
    As to tlio change of the character of the action it may be observed that the amendment set up no cause of action (hat the appellant was not apprised of in the origiual petition. The form and mode of statement was only a little changed; (hat was all. The same ground of action, that is, the injury, was stated in tlie original, which was stated in the amendment.
    Second. It was lawful for the plaintiff to change Ills form of action, and even to allege new matter in an amendment; and the only-right that such an amendment could give to the appellant was the right of continuance, if he had asked for it. (Hart. Dig., art. 093; Turner v. Lambeth, 2 Tex. It., 365.)
    But the defendant did not apply for a continuance, wherefore, &c.
    Tlie want of apprehension in counsel is no ground for a new trial.
   Wheeueb, J.

The proof offered by the defendant was quite too remote in its hearing and too uncertain in its character to authorize its admission as evidence of any fact in issue between the parties. There was no error in its rejection.

It is objected to the charge of tlie court that it was not applicable to tlie pleadings and issue. It is evident from tlie original and amended petition that tlie plaint iff did not seek to recover on tiie alleged promise, hut the recovery sought was for the damages sustained by the plaintiff in the injury done to his property by its appropriation by the defendant to his service and use without tlie authority or consent of -the plaintiff. Tlie right to such recovery was tlie question in issue, to which the jury were required to respond. And the charge in question was a response to the law of tlie ease submitting to the decision of the jury the question of fact. It was therefore pertinent and proper. Tlie objection assumes that tlie action was brought upon the alleged promise. Such, however, manifestly was not the ease. The statement of the cause of action would doubtless-have been more intelligible and sensible had the pleader had more regard to the real facts of his ease and less to common-law forms. But it was, it is conceived, sufficiently so to apprise the defendant of the real cause of action intended to be relied on, and more than this cannot be required.

A now trial it is insisted should have been awarded on the grouud of surprise and of tlie insufficiency of the proof. The petition, it is true, embraces unnecessary and irrelevant matter; yet it is scarcely possible that this or the forms employed in stating tlie cause of action could have deceived or misled the defendant as to the true cause of complaint against him or the facts intended to be. relied on in evidence. And it is apparent that the alleged surprise and want of preparation for tlie trial were not occasioned by the want of sufficient certainly in the petition to apprise the defendant of tlie cause of action or the want of a knowledge on Ills part of what Iliac really was, hut a misapprehension as to the character of evidence which tlie plaintiff would he required to produce to entitle him to recover. For in his affidavit in support of his motion for a new trial it is stated that he “believed, and was so advised by his counsel, “that tlie. plaintiff, to recover in this suit, must produce some clear and direct “proof that the defendant had exercised some control over said negro, “ or had procured him to do the work for him, ” which he avers he had not done. It is thus apparent that the real cause of the surprise was tiie belief that cir-cumstancial evidence would not be sufficient to entitle the plaintiff to recover, and that there must be direct and positive proof of the defendant’s immediate personal agency in the employment of the negro to establish his liability. The mistake arose from supposing that the jury would not be warranted in drawing the conclusion that the defendant did in fact thus employ the negro from circumstantial evidence, but that an express contract or employment must be proved. This was a mistake; not, however, as to the necessity in fact of the defendant’s agency to render him liable, but as to the manner of proving the fact. It was necessary to render the defendant liable for this injury that he should be chargeable in fact with having employed or authorized the employment of the negro about the work. It would be a daugerous doctrine to hold a man responsible for injuries occasioned to others without his authority or agency, though it may have been upon his premises, or even in rendering him a service, if it was not done by his authority or procured to be done by his agency. The defendant must have employed or have authorized the employment of the negro. But such employment need not necessarily be proved by direct and positive evidence, but may be sufficiently established by proof of such circumstances as either necessarily or naturally lead to that conclusion. There may be circumstances of so conclusive a character and tendency as to afford as satisfactory proof of the fact of employment as if an express contract were proved, or at least sufficient to warrant a jury in so finding. Tiie mistake as to tiie law in this particular may have resulted in a hardship to the defendant; and from the statements contained in the affidavits of witness made in support of the application for a new trial, there is much reason to apprehend that it has in truth so resulted. There is reason to believe that if lie liad not been able to show the entire absence of any agency in the employment of the negro he would at least have been able to reduce the verdict by showing him to have been of less value than that placed upon him by the witnesses at the trial. But the hardship, if it be one, is such as this court ■cannot relieve. The defendant offered no proof upon the trial touching- his •own liability or the value of tiie negro; and the only reason assigned is his mistaken belief that it was not necessary. Tiie fact that the party was induced ■to rest in security by such a mistake of law, and was not prepared with witnesses to rebut or explain the evidence adduced against him was not a sufficient legal ground for awarding him a new trial.

As to tiie sufficiency of tiie evidence to warrant the finding for the plaintiff ■.there may be more reason to hesitate. When, however, we take into consideration tiie character of the employment, tiie fact that it was at the defendant’s residence, in the day time, on tiie Sabbath, and that tiie defendant was seen going for means to extricate the negro from tiie well, apparently immediately after the happening of the accident, and that the work must have been progressing- during the day, wo cannot say that the circumstance^ were not sufficient to warrant the jury in the conclusion that the defendant must have had a knowledge of the employment of the negro, and that he would not have •been thus employed at such a time without the defendant’s express authority and agency. We cannot therefore say that the evidence was not sufficient to warrant tiie verdict.

We have noticed the objection to tiie charge of the court that it was not applicable to tiie issue. It was not, it is conceived, erroneous as applied to the evidence. If the negro was thus “ engaged ” or employed with the knowledge and consent, under tiie circumstances proven, and without explanation, tiie presumption we think would he that it was by the procurement of the defendant. Our opinion therefore is that there is no error in the judg-ment, and that it ■be affirmed.

Judgment affirmed.  