Kelly, Timanus & Co., Appellants, vs. Andrew Wallace, Trustee, &c., Appellee, 6 Fla. 690

BALTZELL, O. J., delivered the opinion of the Court. This is a suit instituted to recover the value of a negro man slave, alleged to be drowned in the service of defendants, through the negligence or improper conduct of their agent. One error complained of is in the charge to the jury? given by the judge of the circuit. Its correctness can alone be ascertained by a full understanding of the testimony, which it is not proposed to give in detail, but rather a

summary of its contents. Peter, the slave giving rise to this contest, was hired to work at a saw. mill owned by defendants in Jacksonville, on the St.Johns river, for a year, at the rate of $15 a month.

He was of the age of about 25 or 30, variously described by the witnesses as “ordinary, very ordinary, as an awkward green hand, and his services as not valuable; as valuable, very good at the work he was put at, good at hauling logs into the mill, that is, fixing them for that purpose.” The nature of the employment in which he was engaged when drowned may be thus described: The j>en or boom is an enclosure in the water near the mill, made to secure logs designed for sawing. “The water in it, for the most part,’ is 2-|- feet deep, extending to 8 feet, whilst at the outer edge it is 11 or 12 feet.” “ The logs lie all over the boom, often, are lying at the outer edge, and have to be removed from there to be got to the mill when hands are sent for logs of a particular size.

They are usually all over the boom.” It is stated by one witness to be a dangerous employment for a person to go to the outer edge to get logs, particularly for one that could' not swim.” The superintendent of the mill thinks the risk of life is considered no greater than other work at the mill, &c.; says Peter was not exposed to any more danger than any other hand in the mill.

He states, that “ the boy told him he could not swim ; that he fell into the river on a prior occasion—at least, Peter said he'fell in; he sa/w him in the water, and Peter said a dog saved him once from drowning.” Another witness thinks the boy could not swim-He saw him some time before fall from a log, and went to his rescue; thinks he would have drowned if he had not been helped ; the superintendent saw this.” A third witness “ thinks it was generally understood at the mill that Peter could not swim; that he acted as though he was afraid when he went near deep water; has known superintendent to send him to the outer boom for logs.” The occasion of his death is thus stated: “Peter was found dead in the water; was drowned while he was at work at the mill; was found at Pinnegan’s wharf; was employed at work in the boom by order of the superintendent when drowned; another boy, named Major,-was sent outside by him for a particular stick; he told Peter to go for it, who did so; it was then when he was, drowned; witness did not send Peter for said stick, but sent him into the boom ; there were round and sided logs in the boom; the stick Peter went after outside was a very large sided stick; he was drowned on Priday and found on Sunday; was not present when Major told Peter to go for the log; when ‘ the negro was missed, Major then said he had sent Peter and had not heard of him since.” On this state of facts, the judge instructed the jury as follows : The hiring of a slave constitutes a bailment, and in such hiring, as in the hiring of any other personal property, the person hiring is bound to take ordinary care of him, and must answer for ordinary neglect.

If, therefore, you find from the evidence that said negro was the property of plaintiff, and was hired to defendants, and, while in their employment, he was lost through the carelessness and misconduct of the defendants or their agent, then the plaintiff is entitled to recover. In all ordinary transactions (not criminal) a principal is liable for any act of his agent, when there is negligence, if done within the scope of his authority.

If, therefore, you find from the evidence that an order was given to the said slave Peter by a person in the employ of the defendants who had authority from them so to do, which no ordinary prudent man would have given, and that in consequence of said order the negro was lost, then the plaintiff is entitled to recover; but if such order, in your opinion, was not an unusual one under the circumstances, and that there was not negligence in giving the order, then the plaintiff is not entitled to recover.

If you find from the evidence that the agent of the defendants knew that the said Peter could not swim, and he knowing this and acting within his authority as such agent, gave an order to said Peter within his scope or authority as such agent, which order no prudent man with this knowledge would have given, then the knowledge of the fact that he could not swim by the said agent is sufficient.

It was the duty of the defendants to have employed careful and competent agents.” It was objected to these that “ they were calculated to produce the impression that Peter was drowned in obeying an order of appellants, which, not being true, the charge was error. The boy Major gave the order, and not the agent of the appellants.” The instructions are not liable, we think, to the objection. They are hypothetical, and leave the matter to the jury without any intimation of the opinion of the court. “If you find from the evidence that the agent gave an order to Peter,” &c. This is the language of the instruction.

It is not that Major gave the order to Peter—at least there is no evidence to that effect before us. The superintendent of the mill states this, but says, in another part of his examination, “ that he was not present when Major told Peter to go after the log.

When the .negro was missed, Mayor then said he had sent Peter and had not heard of him since.” Striking out the hearsay statement of Major, which is not testimony, and then removing the statement of this same witness that he, the agent, sent him into the boom, it will be remarked that the question before us is not whether such an order was absolutely given, but whether there was sufficient in the evidence to justify the court in referring the question of its existence to the jury, and we have no hesitation in saying that there was.

If there be error in this charge and those instructions, it consists, in our opinion, in applying the term negligence to what we cannot but regard otherwise than as

an act of misfeasance; and if a positive wrong, an error however to the injury of plaintiff and not of the defendants, and of which the latter are not entitled to complain. The first instruction is nearly a copy of one given in the case of Forsyth and Simpson, which received the approbation of this court, and will be more fully noticed hereafter. It is very obvious that the merits and strength of the case lie in the last instruction.

It is the act of the agent of the defendants in causing the negro to go into the boom. or outside of it, in quest of a log, knowing that he could not swim, that creates the responsibility, and to this the attention of the court will be addressed.

A person hiring a slave is but the assignee of the master, and by the act of hiring acquires for the time his rights to the labor and services of the slave, has the power and dominion over him which the master has, has the responsibility, too, of a master, with the additional obligation that in case of abuse or injury to the slave by improper conduct on his part, he will make compensation for the damage. How, what is the extent of this power and authority of the master? Is it absolute, unlimited, uncontrolled? By no means.

The slave is subject to his master to the extent of his capacity and power, mental as well as physical, and his duty is to obey his orders to the extent of his ability. Hence, then, results a duty on the part of the hirer to inform himself of this capacity, so as not to engage him, the slave, in a service or labor for which he is unfitted or incapacitated by his mental or physical organization. There is a duty, too, on the part of the owner to be frank and explicit in effecting a hire.

Good faith, honesty, the true interests of the master and the slave and the person hiring require, that there be a clear and full understanding on this subject. It is said that a slave hired to work at a mill is subject to any work tobe performed there. We think not. A hand used to the saw may be in peril if put at the engine or on slippery logs in the water. The engineer, though fearless in his position, may be in imminent danger from the saw or getting logs in the water.

A hand not skilled should not be put at any of these, especially if in addition there is a physical infirmity to prevent an execution of the duty. Take the case of a green hand, unused to a steam saw mill. May he at once be put to the saw or about parts of the machinery most liable to produce injury to inexperienced persons, and when, in addition, it is ascertained that from alarm and fright he loses his self-possession and is incapable of his own preservation ? Such work, most obviously, is beyond his reach and capacity. He should not be subjected to it.

The exertion of such power is not the exercise of authority, but the abuse of it—an act of cruelty and oppression ha\ing no sanction of law or morality. A master could not rightly punish for disobedience to such an order, and, if he did so, might be liable to the criminal law, which provides “ that no cruel or unusual punishment shall' be inflicted upon a slave by any master, employer or owner.”—Thompson’s Digest, 511. "With this view of the principle, it remains to apply it to the case before us.

Ability to render service on the water, for- the most part, is acquired, and is the effect of early practice and training. It takes time and use for those unacquainted with the element to accommodate themselves to their new position. With some, there is a natural infirmity, often not to be overcome, that disables from service on or near it. They at once loose their faculties and self-possession, and are scarcely intelligent beings. Should there have been a narrow escape from drowning, it but adds to the embarrassment and. difficulty.

To say or even suppose that a master would force such a slave into such a service is wholly to misunderstand and misrepresent him. It is alike a mistake that he would or could communicate such authority in hiring him. In the present case, we have seen that Peter was afraid in going near deep water; that he told the agent he could not swim, and it was generally understood he could not, He was seen to fall in and was rescued from drowning by the help of another. He said he had been saved from drowning by a dog prior to this.

More than this, the employment itself was of an unusually perilous character, requiring a resolute and stout head and heart and active and expert limbs, and experience and acquaintance with the subject. Under such a state of facts, there can be no hesitancy on the part of this court in agreeing with the court below and jury in regarding the act of this agent as wholly unwarrantable and illegal and in holding his principals responsible.

On the trial, the superintendent said, “The boy Peter told him the dog saved him once from drowning, and the negro said he could not swim.” This was objected to by defendants as not being legal testimony, and the court below admitting it, this is presented as ground of error. It is very obvious the only effect of these expressions was to show that the superintendent was aware of this inability of the boy.

We think the point not at all material, as there is abundant other testimony in the case establishing the fact of knowledge, so that the exclusion of this could have had no effect whatever if the ruling were erroneous. The statement is not mere hearsay from the negro—it is the admission of the party himself charged with the conduct of this slave that he had information as to his ability. It may have been imperfect, still it was knowledge, and we think was admissible. We shall not,, ho we ver, for the reason just stated, enter into any argument to show that it was entirely unexceptionable.

The next exception is to the refusal of the court below to admit the testimony of George K. Fairbanks. It was proposed to ask him the general custom among mill-men in hiring negroes; whether, when hired generally, they were employed in any work about the’mill the managers can find to put them at. This is upon the supposition that the rights of the parties in these contracts are not understood or defined by law, and that it was necessary to resort to witnesses to ascertain them.

Admitting this to be the case, it would scarcely comport with right or justice to appeal to one of the parties to a contract, or to any number of parties, when there are numerous contracts of a like character to give the rule of construction so as to fix and ascertain their own rights and responsibilities and those of the other contracting parties. A custom or mode of dealing between persons engaged in a particular pursuit sometimes reaches to the estimation of an implied bargain. It does not extend to others not parties to the custom nor participant in it.

If the question had been proposed to owners, or persons hiring, as to their consideration and custom of treating the subject, there would be greater plausibility in it. We think there is no difficulty in the application of the law to the case and in ascertaining the rights of the parties, and therefore think the evidence was rightly rejected. From the view already taken of the subject, it will be evident that we are not inclined to favor the motion for a new trial.

Whilst such is our conclusion as to the law of the case, it is yet a part of our duty to see that it has the support and sanction of other courts, and especially of those of our sister States familiar with this peculiar species of property and the relations incident to it. Unfortunately, we have not access to books, and particularly those bearing most directly on the points, and are confined, in some degree, to digests. Those in our power have received very careful and attentive consideration. A case of this kind was before the Supreme Court of this State in 1853, reported in 5th vol.

Florida Rep., p. 337—Forsyth vs. Simpson. In this the instruction of the Circuit Court was almost idem tical with those given here, excepting that as to swimmings and this court sustained the ruling. The facts, as stated in the opinion, were that the slave was ordered to jump on board a steamer from a flat boat lying along side. In the attempt to do so he struck the guards of the-steamer, fell into the water and was drowned. The court say, “ the contract for hiring constitutes a bailment ot the property, and, it being mutually beneficial to both parties, something more than good faith is required.

The owners of the boat were bound to take ordinary care of the slave, and, failing to do so through their agents, they are responsible for the consequences. Apart- from other views, considerations of public policy, the interests of the master and humanity to the slave require that he should be shielded from the unrestricted control and oppression of irresponsible subordinates.

Public policy emphatically demands that the owners of boats and railroads, and other public conveyances, should employ careful and capable agents in their respective business.” It is to be regretted that the facts and circumstances connected with the order to the slave, and which would principally give it character, are not stated in the opinion nor the report. It is only stated that the jury found gross negligence, yet, without these, it is difficult to conclude that in the mere giving of such an order there was gross negligence. The force of the decision on this account is somewhat diminished.

In the case of Ives vs. Wilson, decided by the Court of Appeals of South Carolina, which was for the loss of a negro occasioned by a mortal injury produced-by the collision of two steamers, the jury were instructed, that “to make the defendant liable the collision must have resulted from his intention, his want of skill or negligence in navigating his vessel.” The court say the jury had evidence upon which they might conclude the defendant was guilty of negligence; if so, the verdict is right.”—Cheves’ Law Rep., 75.

The Supreme Court of Tennessee hold language of this : “ The law exacts from the hirer of a slave an observance of.humanity and that measure of care and attention to his comfort and welfare that a master with a humane sense of his duty would feel it incumbent on him to exercise in the treatment of his own slaves.—10 Hump., 267. In Georgia, language is used to the same effect: “ He ought to use the thing and take the same care in the preservation of it which a good and prudent father of a family would take of his own.

Hence, the hirer being responsible only for that degree of diligence which the generality of mankind use in keeping their own goods of the same kind, it is very clear he can.be liable only for such injuries as are shown to arise from an omission of that diligence ;■ in other words, for ordinary negligence.”—6 Georgia.

In Alabama, it is held, that££ the hirer is liable only for gross negligence, which is defined to be the want of slight diligence or a failure in the commonest degree of prudence, or an omission to exercise the diligence which men, habitually careless or of little prudence generally, take in their own concerns.”—Ware vs.

Taylor, 4 Port., 239.- In Horth Carolina, it was held that the hirer of a slave was bound to use such diligence and prudence as a man of ordinary prudence, could if the property were his own; that as a slave was a being, so much care was not necessary as would be required of the bailee of a brute or inanimate thing; that, as P had hired the slave for this very purpose, he would be presumed to know all the dangers and risks, and therefore plaintiff could not recover.—11 Ire., 640 ; U. S. Dig., 1851, p. 59. This wras the case of a boy 12 years old, hired to drive a horse near the shaft of a gold mine.

The boy whilst working at night, being without an overcoat, had gone to the fire to warm himself, and on his being called to start the horse, being drowsy, .fell into the mine and was hilled. In the case of McDaniel vs. Ewing, decided by the Court of Appeals of S. Carolina, a negro man, Jack, was hired as one of the crew of a steamboat and was lost, being knocked overboard, he and the captain being excited by spirits at the time. The court decided that the hirer was liable, inasmuch as Jack was detained after his time had expired.

In another aspect of the case, if Jack was not discharged, that “ the company could not be liable for the loss of Jack, unless it resulted from some wilful misconduct of the captain, or such as should be regarded in the light of carelessness or negligence.” They say further, the captain had a right to order the boat to be turned back, and Jack was bound to obey the order, and whether the manoeuvre was conducted with skill or not on the part of the captain, could make no difference, as the negro was bound to run all the hazards of employment from orders given in good faith and by an officer competent at the time the company employed him. 2 Rich., 457.

These two latter decisions by no means impugn the force of the views we have taken. They decide, that when a boy is hired for a special purpose—for instance, as one of a boat’s crew—he undertakes the hazards of the employment; so does an engineer of a steamboat, or a hand-at the saw. If either of them, without any order or misconduct of his superior, gets entangled in the machinery so as to lose his life, the loss may not fall on the person hiring.

The other cases most evidently show the propriety of the present finding and the appropriate ruling of the court below. ¥e see no reason, on a- view of the whole case, to disturb the judgment of the court below, and it is therefore affirmed with costs.