Alabama & Tennessee Rivers Railroad v. Burke

RICE, J. Where the contract of hiring is general in its terms, and does not restrict the employment of the slave to any particular business, the hirer has the right to re-hire him. to another,, “ being responsible to the owner for his proper treatment, and for his not being employed otherwise than is authorized by the scope of his agreement with the owner.” Seay v. Marks, 23 Ala. R. 532. The hirer is not only liable for his own personal negligence, but for the negligence of the person to whom he re-hires -the slave. — Story on Bailments, § 400. But in either case, he is responsible only for the omission of that diligence and care which the generality of mankind use and exercise in relation to their own slaves under similar circumstances. — Story on Bailments, §§ 398, 399. This is the only just rule to apply to a contract of hiring which is general in its terms. It rests upon the ground, that each party to such a contract knows the degree of care used by the generality of mankind in relation to their own slaves, and that each is satisfied silently to take that degree of. care as part of their contract. If the owner desires a higher degree of care, he should inform the hirer of it, and bind him to its exercise by a contract special in its terms. The law does not make it the duty of the hirer, under a contract general in its terms, to call a physician on every occasion when the slave is manifestly sick and the hirer docs' not know what is the matter with him. Nor does the law, under such a contract, pronounce the hirer guilty of neglect, merely because the slave was manifestly sick and he did not know what was the matter with him, and did not call a phy [541] sician. Under sucb a contract, the law will not do or say anything inconsistent with the rule above stated — to-wit, that the hirer is responsible only for the omission of that diligence and care which the generality of mankind use and exercise in relation to their own slaves under similar circumstances. Whether there may hot be cases, under such a contract, where, under all the circumstances, the failure to call in medical assistance, would, in law, amount to a want of ordinary diligence, — we do not decide. To sustain the allegation of neglect, the plaintiff, among other things, gave in evidence the fact that the slave, whilst sick, was removed from the steam-mill in Perry county to Selma, by railroad. After this evidence was given by the plaintiff, the defendant had the right to explain (if he could), by evidence, why the slave was so removed whilst he was sick. For this purpose, the testimony of Dr. Fair, as offered by defendant and excluded by the court, was clearly admissible. — Goodgame v. Cole, 12 Ala. R. 77; Yarbrough v. Moss, 9 ib. 387; Leaird v. Davis, 17 ib. 28; Pitts v. Burroughs, 6 ib. 733; Dearing v. Moore, 26 ib. 586. In determining the competency of a witness, regard must be had to the issue joined between the parties. The competency of Houston as a witness for defendant in this case, without a release, depends on the question, whether the plaintiff’s complaint, in its present shape, does not exclude him from recovering under it for the negligence of the steam-mill company. We shall.decline now to decide this question, because it is evident tó us that the plaintiff can, and ought, so to amend his complaint as to avoid it altogether. -If the complaint is so framed as to authorize the plaintiff to recover of the defendant 'damages for the negligence of the steam-mill company about the slave, then, under such a complaint, Houston is not a competent witness for the defendant, without a release ; he being a member of that company, and liable over to defendant if plaintiff recovers of the defendant. — 1 Greenl. Ev. §§ 393 to 397; Otis v. Thom, 23 Ala. R. 472. If, however, the plaintiff’s complaint is so framed as to exclude him from recovering for anything but the personal negligence of the defendant, then, under such complaint, Houston is a competent witness for defendant. [542] We deem it unnecessary to decide any other questions presented by the record, except those hereinabove considered and decided. From what we have above decided, it is clear the court below erred in several particulars. Its judgment is reversed, and the cause remanded.