Abraham Womack v. Peter Nicholson, 3 Rob. 248

Morphy, J. This suit is brought to recover the value of a negro woman named Nancy, hired by the plaintiff to the defendant, with damages. It is alleged that, with the knowledge and consent of the latter, one Churchman, his overseer, did so cruelly beat and maltreat the said slave, who was then in a state of pregnancy, as to cause her to be delivered of a child a month or more before the natural time, and that she died some time after of the bad usage and cruel treatment thus received.

The answer, after a general denial, avers that, on or about the 16th of March, 1840, the plaintiff hired to the defendant the girl Nancy, representing her to be a good and valuable field hand, and to be humble, tractable, and healthy, but that, in fact, she was wholly worthless, sickly, and unable to perform work as a field hand ; that she was insolent, disobedient, and in the habit of running away, when able and well enough to do so; that she was of no use to the defendant, but, on the contrary, was an expense to him from the day he received her on his plantation until she left it, for medicines, medical aid, food, nursing, &c.; that from these causes, and from the loss in his cotton and com crop, in being deprived of her services by her remaining away, he has been injured to the amount of five hundred dollars, which is pleaded in reconvention.

The case was tried before' a jury, who gave their verdict in favor of the plaintiff for the sum of $558. After an ineffectual attempt to obtain a new trial, the defendant has appealed. Upon an attentive examination of the record, we have not been able to agree entirely with the jury in the conclusion to which they arrived. The evidence shows that the girl Nancy was an insolent and intractable slave, addicted to running away, and that she ran away several times while hired to the defendant.

One of the witnesses, a brother-in-law of the plaintiff, says that she was stubborn, and required more whipping than ordinary negroes; that she had been hired before to one Cox, who could not keep her, on account of her vicious and unmanageable character. Shortly after she was on the defendant’s plantation, she was discovered to be unsound and sickly. About the beginning of August, a physician was called in to see her; she exhibited, in his opinion, all the symptoms indicating that she labored under dropsy.

Some time after, the girl growing worse, and being of little use to the hirer, Roderick Nicholson, the brother and agent of the defendant, who was then absent from the State, concluded to send her home. A pass was given to -her, and the overseer, Churchman, was instructed to dismiss her. The evidence further shows, that the girl was met on her way home by one Metcalf, lying in a very helpless condition, on the side of the road, about two miles from the house of Eppes, to which she was taken in a wagon. She appeared to have been badly beaten, and her head was bruised and swollen.

She seemed to be in pain and badly hurt. A midwife was procured, and about three o’clock in the night, she was prematurely delivered of a child.

Eppes says, that on the next day he observed her more particularly ; that there was a wound on the top of her head, which appeared bruised on one side ; that she remained some time at his house, and that he examined her body, which bore marks of the whip — some old, and others new marks ; that she got better after the birth of the child; that her body, legs, and ancles were swollen, as well as her face and eyes ; that the swelling subsided at one time, but afterwards returned. While at his house she was visited by three physicians.

Hardwick, one of them, differed from the two others, as to the situation of the girl. He thought that she was not dropsical, and that her ailment resulted from the treatment she had received, and from her pregnancy and the premature birth of a child ; while Burke, who had attended on her before, and Wasson, concur in testifying that she had dropsy in an advanced stage. When she left Eppes’ house to be removed to the plaintiff’s plantation, she appeared to Hardwick to be convalescent, and her wounds were nearly cured. He gave directions that he should be sent for, in case she grew worse.

The evidence further shows, that, after the girl was taken to the plaintiff’s plantation, where she remained about two months before she died, no physician was called to attend on her. During this time a good deal of watery matter oozed from her legs ; her body, face, and eyes were very much swollen; and she exhibited to the persons around her all the appearances which they had remarked in persons afflicted with the dropsy.

From the whole testimony, it is clear that the plaintiffs slave was most severely whipt and ill-treated, although two of the physicians who examined her were of opinion that the ulcerated appearance of the stripes on her body proceeded from the diseased condition of her skin. It is not shown by whom this whipping was inflicted, nor when, nor where it took place.

But even adopting, as we do, the finding of the jury, that it was inflicted by Churchman, the overseer, it is clearly made out to our minds, though it might have caused, and probably did cause, the premature birth of the infant, that the death of the girl, which happened more than three months after, must be attributed to the disease she had before, and which would have occasioned her loss to her master, even without the ill-treatment she received, especially when we take into view the little care and attention extended to her during the time she was at his plantation.

Under this view of the case, and the impression made on our minds by the whole testimony taken together, we believe the plaintiff entitled to recover only the expenses incurred by him for nursing, medical aid, &c., during the time she was at Eppes’ house, in consequence of her ill-treatment by the defendant’s overseer. These expenses appear to amount to one hundred and fifty-eight dollars and fifty cents. ■ This case was submitted, without argument, by P. A. Morse and Roysdon, for the appellant.

No counsel appeared for the plaintiff. - It is therefore ordered that the judgment of the District Court be avoided and reversed; and that the plaintiff do recover of the defendant the sum of one hundred and fifty-eight dollars and fifty cents, with costs below, those of this appeal to be borne by the plaintiff and appellee.