
    *Harvey v. Skipwith & als.
    April Term, 1863,
    Richmond.
    i. Pleading and Practice—Breach of Contract—Action in Tort—Contract Stated in Count.—The hirer of a slave puts him to a dangerous employment in violation of the contract of hiring, and the slave is injured. In an action by .the owner against the hirer for the injury to the slave, the stating the contract in the count, and the injury as done in' violation of the contract, does not prevent the count being in tort.
    a. Slaves—Injury to—Suit by Reversioners.—Persons owning a reversionary interest in a slave may sue for an injury done to him whilst held by the life tenant.
    3. Same—Same—Same—Descriptio Person®—Case at Bar.—A husband who has survived his wife and has qualified as her administrator, may unite with the other joint owners of the reversion of a slave for an injury done to him; and the description of him in the commencement of the declaration as administrator of his deceased wife, will be considered as mere descriptio personae; the declaration stating the interest in the property as his, and the injury done to his property.
    4. Same—Same—Same—Defence.—The fact that the life tenant has received back the slave from the hirer, before the action is brought by the reversioners, constitutes no defence to their action.
    5. Same—Same—Breach of Contract — Negligence of Slave—Effect of.—if a hired slave is put by the hirer to a dangerous employment, in violation of the contract of hiring, and is seriously injured whilst thus employed, the hirer is liable for the damages, notwithstanding the slave may have been negligent or imprudent, or have acted in disobe- • dience of the orders of the hirer in respect to such employment, and notwithstanding such negligence or imprudence or disobedience may have been the proximate cause of the injury.
    This was an action on the case in the Circuit court of the city of Richmond, by Robert Skipwith and others *against Robert Harvey. The declaration was filed at July rules 1858, and contained two counts. In it Robert Skip-with, George N. Skipwith, Wm. Skipwith and James M. Whittle administrator of Cornelia G. Whittle deceased, who was Cornelia G. Skipwith, complain of Robert Harvey, &c. Ror that heretofore, (fee., the plaintiffs were the owners and proprietors Of the reversion of a slave named Jefferson, in which Mary Skipwith held a life estate; and that the defendant had hired the sa’d slave from Mrs. Skipwith for the year 1853, at the price of one hundred and forty dollars; but upon the distinct understanding and agreement that the said slave should not be employed in or about the blasting of rocks or using powder, or expose to hazard of life or serious injury from being thus dangerously employed. That the defendant in violation of his agreement did employ the said slave about the blasting of rocks or using powder, thereby exposing him to danger; and in consequence thereof on the 28th day of May, 1853, the said slave while engaged in and about the blasting of rocks and using powder, was seriously injured by an explosion of the powder so being used, and had both his eyes so injured as to destroy the sight thereof, Sec.
    
    The second count after stating the title of the plaintiffs to the reversion and the life estate of Mrs. Skipwith, and her possession of the slave Jefferson as in the first count, omitted the statement as to the hiring of the slave by the defendant from the life tenant; and instead thereof, charged—That the defendant not having obtained therefor the permission and authority of Mrs. Skip-with or the plaintiffs, but against the express injunction and request of Mrs. Skipwith, did wrongfully employ the said slave in and about-the blasting of rocks and using of powder. In consequence whereof, &c., as in the first count. To the damage of the plaintiffs fifteen hundred dollars.
    *At the November term 1858, of the court, the defendant tendered two pleas in abatement of the action, which being objected to by the plaintiffs were rejected by the court: and thereupon the defendant excepted. Tlie first plea prayed judgment of the writ because the three first named plaintiffs suing in their individual rights were joined in the action with the plaintiff James M. Whittle suing as administrator of Cornelia G. Whittle deceased. The second plea alleged that the three first named plaintiffs, with Thomas B. Skipwith and James M. Whittle were the owners of the reversion in the slave, in which Mrs. Skipwith was entitled to an estate during, her life. That Thomas B. Skipwith had conveyed and assigned all his interest in the slave including all claim for damages done to the said slave, to the three first named plaintiffs and James M. Whittle; and the objection was that Whittle was not a partj' plaintiff in his own right.
    On the 4th of December, in the same term of the court, the defendant demurred to the declaration and each count thereof; and the plaintiffs joined in the demurrer: and thereupon the office judgment was set aside. And on the 19th of January, the defendant pleaded “non-assumpsit,” “not guilty” and “non-damnificatus,” “payment,” and “accord and satisfaction;” on all which issues were made up. The defendant also tendered a special plea, which was objected to by the plaintiffs and rejected by the court. And the defendant again excepted. This plea alleged that the only contract of hire which he made for the slave was embraced within and evidenced by a writing obligatory executed by the defendant to Mrs. Skipwith, with W. Goddin as his surety; but which was not delivered until the month of April or May, 1853, by which the obligors bound themselves to pay to Mrs. Skipwith on the 1st of the next January, §140 for the hire of the said *slave for the year 1853; and moreover covenanted to return said slave to her at the ensuing Christmas well clothed with the customary clothing and furnished with a hat. That the said writing obligatory had been fully paid off and discharged before the institution of this suit; that the slave was returned to Mrs. Skipwith at or before the ensuing Christmas, and was received by her. That if the defendant was liable to any person for the return of the slave in as good condition as when he was received by the defendant, he was liable to Mrs. Skipwith. And' that after the payment of the money, and the return of the slave and his reception by Mrs. Skipwith, the said writing obligatory was delivered by her to the defendant before the institution of this suit.
    At the spring term of the court for 1859, the court overruled the demurrer to the declaration ; and the parties proceeded to a trial before a jury. Upon the trial the plaintiffs introduced as a witness Thomas B. Skipwith, who stated, that the slave injured was one of the slaves held by his mother Mrs. Skipwith, as her dower slaves in the estate of her late husband, and that the witness, and the plaintiffs, and Cornelia Iy. Skipwith, who had married the plaintiff Whittle, and had died in 1851, were the distributees and entitled to the reversion after his mother’s death. The defendant then objected to the competency of the witness; but the plaintiffs having produced a deed by which he had, before the institution of this suit, conveyed and assigned to them all his interest in the slave, including therein all claim for damages for all and every injury of any kind therebefore done to the slave; the court overruled the objection ; and the plaintiff excepted.
    Upón the cross-examination of the witness Thomas B. Skipwith, by the defendant’s counsel, he was asked if the defendant „ was in lawful possession of the negro *when the accident happened. To which the witness replied he supposed he was, as he had hired him. And thereupon the plaintiffs asked the witness as to the terms of the contract between the defendant and Mrs. Skipwith,, the life-tenant of said slave. To this question the defenddant objected; the plaintiffs being no parties to that contract. But the court overruled the objection: and the defendant again excepted.
    After all the evidence had been introduced the plaintiffs moved the court to give the following instructions:
    ‘ ‘If the jury shall believe from the evidence, that the slave Jefferson, in the declaration mentioned, was hired by the defendant for the year 1853 from the life-tenant, upon the promise and agreement of the defendant that the said negro slave should not be employed in blasting rocks or using powder wrhilst in the service of said defendant, or exposed to hazard of life or serious injury from being thus dangerously employed: and if they believe from the evidence that the defendant took possession of the negro under that contract, and whilst so in his possession the said negro was employed by the defendant, or his agent having control of said slave, in blasting rocks or using powder, or exposed to hazard of life or serious injury from being thus dangerously employed, and was seriously injured whilst thus employed or exposed, by an explosion of powder; then the plaintiffs have a right to recover notwithstanding that the slave may have been negligent or imprudent, or have acted in disobedience of the orders of the defendant’s manager in respect to such employment or exposure, and that such negligence or imprudence or disobedience may have been the proximate cause of his injury. But if the jury shall believe that said injury occurred to the said slave whilst he was in the employment of the defendant in pursuance of the contract, then they shall find for the defendant. ’ ’
    
      *2. ‘ ‘ That the plaintiffs cannot recover in this action the value of the life estate of Mrs. Mary Skipwith in the slave Jefferson, or the interest in remainder in the said slave of Thomas B. Skipwith.”
    • The defendant objected to the instructions moved for by the plaintiffs, and moved for six instructions himself. Of these the first three were given by the court. The others were as follows:
    4. “The court instructs the jury that the case of West v. Sweeney recently decided by the special court of appeals, should not rule their construction of the contract in this case; that the contract declared on in that case is different from this, and that the evidence there given in support of the breach of the contract differs from this; and that in relation to the contract here the jury are to look to the court for the construction of the contract; and the jury are to determine whether such a contract has been made, and if made whether it has been broken.”
    5. “The jury cannot find for the plaintiff although they should believe from the evidence that the said slave Jefferson was injured as charged in the declaration; unless they shall further believe from the evidence that the said negro was put to the said forbidden employment by the defendant, or by his agent authorized by the said defendant to put the said slave to such forbidden employment, and if they shall believe that the said slave was put to such employment by the agent of the defendant out of the line of his authority and against the orders of the defendant given to said agent, then they must find for the defendant.”
    6. “Though the jury should believe from the evidence that the boy Jefferson was employed by the defendant or his agents to drill the hole in the rock, and that he was employed by the defendant or his agents to bring up the keg of powder to the place where the superintendent ^intended to use it, yet they are not to find for the plaintiffs if they shall further believe that the bringing up of the keg of powder was all that the said negro had to do with the matter of blasting and using the powder, and that after he had delivered the keg it was his orders and in accordance with the general use and custom of the negroes to go back to his regular work, and that his lingering at the place was without the knowledge or consent of the defendant or his agents and. against their orders.”
    The court gave the instructions asked for by the plaintiffs, and the first three instructions asked by the defendant, but refused to give the last three asked by him; the fourth being refused on the ground that the case of West v. Sweeney, had not been used during the trial of the cause, and had not been brought before the court. And the defendant again excepted.
    There was a verdict for the plaintiffs for $520—with interest from the 1st day of January 1854, until paid. And thereupon the defendant moved the court to set aside the verdict and grant him a new trial on the grounds—that the verdict was contrary to the evidence—that the rulings of the court on the trial were improper—and that the damages assessed were excessive. But the court overruled the motion, and rendered a judgment on the verdict: and the defendant again excepted; and the court certified that the facts proved on the trial were as set forth in the previous bills of exceptions.
    It appears that the slave Jefferson was one of the dower slaves held by Mrs. Mary Skipwith; and that the reversion in said slave belonged to Thomas B., Robert, William M., and George N. Skipwith, and Cornelia B. Skipwith who had married the plaintiff James M. Whittle, and had died in the year 1851. Mrs. Skipwith had for several years previous to 1853, hired slaves to the defendant Harvey, and among them the slave Jefferson. *That her son Thomas B. Skipwith acted as her agent in hiring out the slaves, and about the commencement of the year 1853, said Thomas B. on his way to Richmond to hire out slaves, met with the defendant, who proposed to hire the slaves again. This was declined at the time; but they met again in Richmond when the defendant remarked to Skipwith that he seemed to have an objection to hiring him the hands. Skipwith told him he had; the negroes had complaind to him of being engaged in blasting the year before. Defendant said it was a mistake, that his overseer did the blasting. Skipwith then said that he had orders from his mother not to hire them for blasting, and that he would not hire them to blast or use powder in any way; that white men became careless in using powder and negroes more so. Defendant then said that his overseer did the blasting and that there would be no danger. The bargain was then closed.
    It appears further that the defendant was a contractor on the Roanoke Valley railroad, and that the slaves hired from Mrs. Skipwith were hired to be employed on that work. In May 1853, whilst so employed, the slave Jefferson was injured by the unexpected explosion of powder, so that his eyesight was entirely destroyed. The following is the written statement of William S. Davis, the overseer of the defendant, who was a witness for him:
    During the years 1852, 1853, and 1854, witness was the overseer or personal superintendent of the defendant’s hands, on the line of the Roanoke Valley railroad. Defendant gave witness instructions not to put any of the negroes to work in blasting rock or using powder. He obeyed those instructions and never did put any of the negroes to that part of the work or permit them to be nigh when it was going on. Witness himself always did the blasting, and made use of the powder. The *process of blasting was as follows: A hole was first drilled in the rock. This was sometimes done by one of the negroes; and when the hole was swabbed out with an instrument or brush made for that purpose. By swabbing out is' meant cleaning out with a moist brush, and then with a dry one; then a little powder was put in and flashed off to see whether the hole was perfectly dry; this was always done by witness. If the hole was found to be dry, witness then proceeded to load it with powder. Sometimes some of the negroes were sent to bring the keg of powder from its place of safe deposit near, but after they had brought it and put it down they were sent away to their regular work, and had nothing to do with it any further. Jefferson may have sometimes been called upon to do that, but witness does not remember particularly that he did it on this occasion, but thinks it probable that he was. After putting the powder in the hole, witness always called out to the hands, if any were working near, to get out of the way, that he was going to fire the blast; then witness primed the hole, put a slow match to it (lighted),' himself got out of the way and stayed away until it fired off. That was what was meant by blasting—that is, putting the powder in the hole, fixing it up, and firing it off; that was always understood to be its meaning among rai1road men. The negroes were never put to that, although, as witness had said, they sometimes drilled the hole and sometimes brought the keg of powder, though most generally witness brought up the powder himself. The hands were generally, or more frequently, of necessity, at work in digging, excavating, or carrying away the earth on the road near where the drilling the holes and the blasting had to be done, but when the blasting was to be done they were always sent away. On this particular occasion, after the hole was bored, witness did not remember whether he or who had drilled the hole; after *the hole had been swabbed out, witness tried the hole with a little powder, as usual; the powder flashed off very well, as usual. After waiting about fifteen minutes, which was the usual time, witness went up to the hole again, and set about preparing it for a blast. He apprehended no danger whatever, or he should not have exposed himself to it; everything bore its usual appearance; all the operations had been done regularly and with the usual precautions. After waiting the time generally thought entirely sufficient, he commenced to prepare the hole, did not see Jefferson or any of the negroes about; they had no business to be about, having orders to keep out of the way; but witness has no particular recollection of having given orders on that special occasion, but presumed he did; if he did not, however, such were the general orders, perfectly well understood by all the hands. Witness proceeded to put the powder in the hole, and when the first handful was put in an explosion took place, greatly to surprise of witness; the blast just escaped witness’ own head, burning one of his hands severely. Jefferson, it seems, had come up behind witness, and was from behind an embankment of excavated earth overlooking witness at the time. Jefferson was not engaged in blasting rock or using powder at the time the accident occurred.
    It appears that the slave Jefferson was at the time of the injury about twenty-two years old, that he was very likely and of very good character; and that he was worth about S1000. Mrs. Skipwith the life tenant of the slave, was then sixty-two years of age.
    The defendant obtained a supersedeas to the judgment from one of the judges of the Circuit court.
    Howard and Sands, for the appellant.
    Welford and Morson, for the appellees.
    
      
      Descriptlo Person®.—In Goshorn v. County Court, 42 W. Va. 739, 26 S. E. Rep. 453, the court said; “The first matter that attracts attention is why these plaintiffs should sue, as executors of J. H. Goshorn, deceased, for the price of hogs bought by themselves of Armstrong, and sold to the county court.' It is evidently a contract in their own right, and they must be regarded as suing in suo jure, though the description of executors be added to their names as plaintiffs. Such matter of description may, however, be treated as surplusage, and therefore a harmless error. See 3 Lomax, Ex’rs, marg. p. 371; 3 Rob. Prac. (New Ed.) 518; Rose’s Adm’x v. Burgess, 10 Leigh 186; Harvey v. Skipwith, 16 Gratt. 393; Clarkson v. Booth, 17 Gratt. 490, 497.”
    
   DANIEE, J.

The demurrer was properly overruled. *There is no misjoinder of counts. Each of the counts is a count in case for a tort. The second is confessedly so; and the statements and allegations in respect to the contract of hiring contained in the first, do not impress upon that count a different character. The act complained of in the first count, as in the second, is, in its nature, a tortor injury to the reversioners, and the allegation that the wrongful or tortious act was done in violation of a contract with the life tenant, does not make the first count any the less a count for a tort. The gist of the complaint contained in the first count, is, just as obviously as in the second, the doing of the wrongful and injurious act by the hirer, of putting the slaves without the permission of the owners, to a dangerous employment and thereby causing the injury, to him, and the loss to the reversioners.

If it be true, as argued, that the life tenant with whom the contract of hiring was made, might have brought and maintained her suit for the entire damage caused by the injury, still it does not follow that the reversioners were compelled to seek through her, a redress for the wrong done to them. On the contrary the authorities are clear that in such case the reversioners may sue in case for the injury to the reversion.

There is no allegation in the declaration, that the cause of action which it sets forth, in any manner, accrued to Whittle in his character of administrator. It is not stated that, at the time of the wrong complained of, his intestate Cornelia E. Whittle (his wife) was the owner in partnof the slave in reversion, nor that the title to the slave in reversion, at the time aforesaid, was in Whittle in his representative character, jointly or in common with the other plaintiffs. The addition of the words “administrator of Cornelia E. Whittle deceased, who was Cornelia E. Skipwith,” must therefore be treated as a mere designation or description *of the person, and does not render the declaration obnoxious to the objection, urged against it, of uniting Whittle as a personal representative with parties asserting claims in their own right.

The first and second pleas, the rejection of which by the court is made the ground of the second and third error assigned, seek to present the same question. They were properly rejected; Whittle was suing in his own right.

The fourth assignment cannot be sustained. There is no conflict or inconsistency between the conduct of the life tenant in receiving the slave and his hire, and the right of the reversioners to maintain their action on the case for the wrong and injury to the reversion of which they complain. In an action of trover and conversion by the life tenant, a plea, relying on such conduct as amounting to an implied waiver of her cause of action, might be made, not without some show of argument in its favor. It might be said, in such case, that the action proceeded on the ground of a destruction of the property of the plaintiff by the wrongful act charged as a conversion, and that a waiver of the conversion was involved in taking back the slave and receiving the hire after the wrongful act: the plaintiff thus evincing, by her acts, a purpose to treat the property in the slaves as unchanged. Be this as it may, however, it is not perceived on what ground such a plea could avail, even against the life tenant, in action on the case founded upon no alleged conversion of the slave, but proceeding on a subsisting right of property in the slave. A fortiori, .such acts of the life tenant cannot be held to preclude the right of the reversioner to maintain an action on the case for the injury inflicted on their interests in the subject.

The question, presented by the fifth .error assigned, has been already disposed of in passing upon the demurrer. *The contract of hiring between the life tenant and the plaintiff in error having been properly set out in the declaration by way of inducement, it could not be error in the court to allow it to be proved as laid.

The first instruction given at the instance of the defendants in error, and the giving of which is made the ground of the sixth assignment of error, is plainly right. It asserts the proposition that, if a hired slave is put by the hirer to a dangerous employment in violation of the contract of hiring, and is seriously injured while thus employed, the hirer is liable for the damage, notwithstanding the slave may have been negligent or imprudent or have acted in disobedience of the orders of the hirer in respect to such employment, and notwithstanding such negligence or imprudence or disobedience, may have been the. proximate cause of the injury. This proposition is fairly deducible from the decision and reasoning of this court in the case of Harvey v. Epes, 12 Gratt. 153; and is fully sustained by the cases of Hooks v. Smith, 18 Alab. R. 338; The Mayor and Council of Columbus v. Howard, 6 Georgia R. 213; Gorman v. Campbell, 14 Georgia R. 137; King v. Shanks, 12 B. Monr. 410; and Sims & Smith v. Chance, 7 Texas R. 561.

The seventh assignment of error is based on the refusal of the court to give the fourth, fifth and sixth instructions asked for by the plaintiff in error. The fourth instruction is plainly without any warrant in the usages and practice of the courts. If the plaintiff in error desired the court to construe the contract of hiring, he should have stated the construction which he wished the court to propound to the jury, or at least have asked the court to declare the true legal import of the contract. Trials at law would be interminable if the courts were bound, at the instance of the parties, to point out to the jury, the particulars in which a case on *trial resembled, or differed from, other cases cited by counsel as precedents.

There was no evidence on which to found so much of the fifth instruction as asked the judge to say, to the jury, that if they believed that the slave was put to the alleged forbidden employment, by the agent of the defendant, out of the line of his authority and against the orders of the defendant given to said agent, then they should find for the defendant. It is true that the witness William S. Davis says that Harvey gave him instructions not to put any of the negroes to work in blasting rock, or using • powder. But he says, further, that he obeyed those instructions, and never did put any of the negroes to that part of the work, or permit them to be nigh when it was going on. He goes on, however, afterwards, to say that sometimes some of the negroes were sent to bring the keg of powder from its place of safe deposit near, but after they had brought it and put it down, they were sent away to their regular work, and had nothing to do with it any further; that Jefferson may have sometimes been called upon to do that; that he does not remember that he was called upon on the occasion in question, but thinks it probable that he was; that after putting the powder in the hole witness always called out to the hands, if any were working near, to get out of the way, that he was going to fire the-blast. Then witness primed the hole, put a slow match to it himself, got out of the way and stayed away until it fired. That (he continues) was what is meant by blasting'—■ that is, putting the powder in the hole, fixing it up and firing it off; that was always understood to be its meaning among railroad'men. The negroes (he proceeds) were never put to that, although they sometimes drilled the hole, and sometimes brought the keg of powder, though most generally witness brought up the powder himself. There is obviously nothing in the ^statements of this witness (who is the one most favorable to the views of the plaintiff in error), tending to show that, in employing Jeffejrson as he did, he was acting out of the line of his authority or against the orders of Harvey. He was, (as he styles himself in his deposition), ‘.‘the overseer or personal superintendent of the hands,” whose orders they were bound to obey, and the manifest tendency and drift of his evidence is to show that, in employing Jefferson to bring up the keg of powder to the place at wl^ich it was to be used in blasting, he was acting in strict conformity with the contract of hiring as understood and construed by “railroad men.” And in the sixth instruction the court is asked to say to the jury that this is the true construction of the contract: that is, that though the jury should believe from the evidence that Jefferson was employed to drill the hole in the rock and to bring up the keg of powder to the place where the superintendent intended to use it, yet they should not find for the plaintiffs, if the jury believed further that bringing up the keg of powder was all that the said negro had to do with the matter of blasting and using the powder, and that after he had delivered the keg, it was his orders, and in accordance with the general use and custom of the negroes, to go back to his regular work, and that his lingering at the place was without the knowledge or consent of the defendant or his agents and against their orders. The witness Skipwith who proves the contract of hiring-, states that in his negotiation with Harvey for the hire of Jefferson, Harvey remarked to him that he seemed to have an objection to hiring the hands to him. That witness told him he had; that the negroes had complained to him of being engaged in blasting the year before. That Harvey said this was a mistake, that his overseer did the blasting. That witness then said that he had orders from his mother not to hire them for *blasting, and that he would not hire them to blast, or use powder in any way; that white men became careless in using powder and negroes more so. That Harvey then said his overseer did the blasting, and that there would be no danger; whereupon the bargain was closed.

Now, one of the well received senses or meanings of the word “use” is the act of handling or employing in any manner and for any purpose; and there is no proof that Skipwith knew of the technical and restricted meaning given by railroad men to blasting, or using powder (if indeed such evidence could affect the case), nor that Harvey had referred to such meaning, in contracting, as he impliedly, if not expressly did, that Jefferson should not be put to blasting or using powder in any way. The court I think properly refused to give the sixth instruction.

The eighth and last assignment of error is on account of the court’s refusal to grant a new trial. Nearly all of the questions which could arise on a motion for a new trial have been already considered in passing upon the proceedings preliminary to the verdict. Putting the case on the footing most favorable to the plaintiff in error, it is still made to appear-that the injury to the slave was the consequence of a breach by said plaintiff of the duty imposed on him by the contract of hiring. The slave is proved to have been worth $1,000, and he was rendered valueless bjr the injury; and the life tenant is proved to have been over sixty years of age; and it cannot therefore be truly said that $520 was much (if any) in excess of the four-fifths of the value of the reversion, which under the instruction of the court the plaintiffs in the action were allowed to recover. The court properly instructed the jury that, the plaintiffs, in the action, could recover nothing in that suit in virtue of the assignment and release to them by Thomas B. *Skip-with of his interest in remainder to the slave. This instruction, however, does not show that Whittle was without an interest in the suit. Jure mariti he was entitled to the interest of his deceased wife in the slave. We have shown that he was not to be regarded as suing as administrator of his wife; and the authorities show that in such a case as we have here he may maintain a suit, in respect to such interest, in his own name, without taking out letters of administration on the wife’s estate. Wade v. Boxley, 5 Leigh 442; Henry v. Graves, supra 244.

Other objections to the proceedings were stated in the course of the argument, but I deem it unnecessary to say more in respect to them, than that they fail, in my opinion, to disclose any sufficient reason for reversing the judgment.

The other judges concurred the opinion of Daniel, J.

Judgment affirmed.  