Brady v. Price

Wheeler, J. There was no error in overruling the exceptions to the plea in reconvention. The suit was to recover the wages of the plaintiff as overseer. The plea avers that, by reason of the unfitness of the plaintiff for the employment, and his misconduct in the performance of it, the defendant had sustained [289] the injury complained of. It comes, therefore, within the rule, as being incidental to, and growing out of, the subject matter of the suit. Even at common law, in an action for work and labor, or goods sold, though the contract was at a certain price, the defendant may prove, under the general issue, in reduction of the price, that the work was improperly done. (1 Chit. Pl. 569.) In an action to recover compensation for services as a housekeeper, and for goods sold, it was held that evidence that the plaintiff was guilty of malfeasance, and had embezzled the goods of the defendant, was admissible, under the plea of non-assumpsit, to defeat the action. (4 Serg. & Rawle, 249.) With us the defendant may plead specially any matter of defence which goes to defeat the action; and he may plead in reconvention unliquidated damages necessarily connected with, and growing out of, the original cause of action. On the authority of repeated decisions of this Court, the ruling of the Court upon the exceptions to the plea, was correct. (Castro v. Gentily, 11 Tex. R. 28 ; Sterrett v. Houston. 14 Tex. R. 153.) The charge of the Court was undoubtedly correct. The plaintiff had a right to chastise the slave for his misconduct, in a proper manner. But when he was not opposing forcible resistance offensively, he had no right to assault him with a deadly weapon, in a manner likely to produce death or great bodily harm, by way of punishment, or to compel him to submit to chastisement. He had no right to shoot him down for the purpose of stopping him when retreating against his orders. The case of Copeland v. Parker, decided by the Supreme Court of North Carolina, (3 Iredell, 513,) is in point. The defendant, an overseer, was about to whip the slave for leaving his work without permission. The slave started off; the defendant ordered him to stop; but the slave quickened his pace. The defendant shot him with a shot gun loaded with squirrel shot, and lodged the load in his back and thigh, which disabled him for work for some time. The Court charged that a [290] gun was not a fit instrument for chastisement, and that an overseer had no right to shoot a negro who refused to stop when ordered, and was in the act of making off. The plaintiff had a verdict judgment for damages for the injury sustained ; and on appeal the Supreme Court affirmed the judgment; holding the charge unexceptionable. If the plaintiff was unable to enforce due subordination, by the use of any reasonable and proper means ; or without resorting to the use of deadly weapons, he ought to have applied for assistance, as he had been instructed to dó by the defendant’s agent. He committed a wrongful act, for the consequences of which he was,responsible to the owner of the slave. The evidence fully supported the plea and warranted the verdict; and the judgment must be affirmed. Judgment affirmed. '