Beardslee v. Perry

Ryland, J., delivered the opinion of the court. From the above statement, it .will be seen that the point before us for adjudication involves the propriety of the only instruction given by the court below for the defendants. In order to be able the better to understand this point, we will here insert the entire evidence produced by the plaintiffs. “The deposition of John Carlisle: In March, 1844. I hired to the Harry of the West, a negro boy (David) belonging to Hannah Andromache Smith, now the wife of Charles Beardslee, at the time that I hired said boy, I was employed on said boat as pilot. I made the contract of hiring with the mate of the boat, as was customary. This was about the 10th or 11th of March, he arrived here about this [91] time, and I found said boy who had been employed on the Ben Franklin and had left her. I then hired him to the Harry of the West; Miss Smith, the owner of the boy, was at that time at Cape Girardeau in this State. I was acting as agent for Miss Smith, and had always hired ne-groes for her. I hired said boy to said boat as a fireman, by the month, and for no definite period. The trip that I hired the boy, 1 went on the boat to New Orleans, on said trip and back, and when I left the boat at this place, the boy was on board. Some one or two trips after this, the boy left her at St. Louis. Í think it was in May. The contract for said hiring was not in writing, nor was there any stipulation made that the boy should be returned. Nothing wag said about the terms, except the monthly wages. At the time the boy left the boat, I was the agent of Miss Smith. She was then single, and was not married to Mr. Beardslee until September next after the hiring of the boy. Mr. Green, of the Virginia Hotel, at the instance of Capt. Van Houten, addressed me a letter at Alton, Ill., desiring that I would come to St. Louis; that he wished to see me on some business, but made no mention of the boy. I accordingly came and went on board (to settle for the wages of the two boys, the day of my arrival or the next day,) the Harry of the West, and found that the boy David was not there. Between the time that the boy run away, and the time that I went on board to collect the wages, I do not know vthat the boat made a trip. At that time, it was my impression that she had, but now I do not recollect. I immediately on the same day of receiving Green’s letter, came down to St. Louis. I settled for the hiring of the boy David, up to the time that he left the boat, on the day that I arrived from Alton. I was then acting as Miss Smith’s agent, and acted as her agent in making the settlement. I did not at that time assert any claim for damages on account of the boy’s having run off. I did not intimate to the officers, that I claimed damages. I said nothing about it. 2nd question. D® you recollect in this conversation with captain Van Houten, that any thing was said about his having sent a message to you in relation to the running away of the said boy P Answer — I do not. I do not recollect that captain Van Houten said to me any thing about the letter; that Green wrote me, I think it is probable that he did. It has been so long, I cannot remember. The letter stated that he, Green, had written it at the instance of captain Van Houten. I do not know where this letter now is — it may have been burnt up or destroyed, or it may be among my old letters. My impression is, that it is destroyed. I looked for the boy about town [92] considerably, and could not find him, and then wrote to his mistress apprising her of the boy’s having run off. Supposing that he might be about Cape Girardeau, I did not advertise said boy. I think it was talked about, but I cannot say that it was done. I received no letter from Miss Smith in reply to one referred to. She came up to St. Louis in a short time after this, when I had a conversation with her upon the subject. At first it was her impression that the boy had not ran away ; that he was somewhere about and would return again. She had owned the boy but a short time, and had herself hired him to the Ben Franklin. The boy had never hired his own time. Miss Smith, through me, purchased said boy at New Orleans from a trader of negroes from Kentucky. John Calvert of St. Louis was acting as the agent for said trader, and made the trade for him. No efforts were made in New Orleans or Kentucky to recover the boy that I know. I enquired of Calvert as to the place or residence of said trader. I think he told me it was somewhere between Lexington and Maysville, Ky. I do not know that the trader was ever written to concerning any information as to where| the, boy was raised, or for any information about him. I do not know that any efforts were made about the city by Miss Smith or myself, to recover the boy other than my inquiries in relation to him. (The third question related to the general custom or understanding among steamboat officers and owners, the liability or responsibility for slaves hired, when they run away. It was objected to. Objection sustained — and question ruled out as improper. I will not notice it or the answer any further.) Cross-examined. At the time that I hired these negroes to the Harry of the West, the owners of said boat were Capt. Van Houten, John Perry, Holmes & Swanwick, and James P. Durst. James P. Durst was clerk of said boat, when I settled for the wages. When I called upon Durst for the settlement of the wages, he was going to pay me up to the time of ray calling; he did not know that the negro had run away. He paid me up to the time that the negro had run away; what difference was made in his wages, I do not recollect — the reason, why he did not pay up to the time of my calling was, that he called for the mate to know if the boy had lost time, or anything of that kind, that reduction might be made. The mate came in and stated that the boy had run away. This was the first notice that I had of the boy’s running away; I had not seen the captain then — having just come down. I think the wages commenced on the 17th March, he left here on that day. But I do not recollect that the boy was on the boat before [93] or then. At the time I hired the boy to the boat, nothing was said of its being at the risk of the owner. At the time of the hiring, I do not recollect that 1 mentioned to any of the officers ol the boat whom the boy belonged to; but I did after the boy ran away. I don’t know that Miss Smith was at this time twenty-one years of age — I don’t believe she was; I receipted for the wages in this instance, as in other similar cases, in my own name. When in St. Louis, I always stopped at the Virginia Hotel, and have for the last two years. I left the Harrv of the West, as pilot, on account of sickness. While at Alton the proprietor of the Viginia Hotel knew that I was there. Capt. Van Houten knew, that when in St. Louis, I made said hotel my house. (Signed,) JOHN CARLISLE. Charles M. Valleau, then being sworn, testified that at the request of said plaintiffs in November, A. D. 1845, he demanded of Van Houten the boy David. Van Houten replied that the boy had run away; that he was going to take no more trouble about him — that the boat was not liable for him and would not pay for him.” The plaintiffs gave no further evidence, and rested their case on this. The defendants thereupon asked the court to give the following instruction, to-wit: “This being an action on the case for wages alleged, the plaintiffs have offered no evidence which proves the defendants were guilty of such carelessness or negligence as caused or allowed of the negro running away, and the jury must find for the defendants.” Which the court gave — to the giving of which the plaintiffs duly excepted; and thereupon the plaintiffs took a non-suit, and afterwards moved to set the same aside; which motion was overruled, and the plaintiffs excepted, and bring the case to this court by writ of error. The question before us is, was there any evidence to support this action against the defendants. This case has already once before been in this court; see 10th Missouri Rep. 568. From the principles then laid down by this court, I am clearly of the opinion, that the plaintiffs had wholly failed to make out by proof their cause of action. They had not made out a prima facie case. In the opinion given in this case heretofore, this court said — “The evidence on the record is entirely silent as to the mode or circumstances under which the escape look place. It only appears • that the slave was missing at St. Louis, and was afterwards seen at Cincinnati. Whether he was lurking about St. Louis, for some time after his escape, or on an adjoining boat, or could have been easily retaken, or whether he made an immediate escape from the city does not appear. It does not appear in what way or [94] what time the slave escaped, nor whether both time, place and mode were unknown. It would seem the duty.of the plaintiffs to show some evidence so as to make out a prima facie case of negligence, if negligence existed, without requiring him to prove a negative. If circumstances calculated to throw a suspicion upon the conduct of the bailee be shown, the jury will readily enough draw unfavorable inferences if the defendant does not explain them, when he has it in his power to do so. There are no obstacles to the plaintiff’s recovery, on the score of the burden of proof, if a case exists which would authorize a recovery.” In the case as it now appears upon the record, the plaintiffs have not bettered their situation. There is no proof about the mode or time of escape, nor the circumstances. No proof of any circumstances, showing a permissive escape. The proof shows a hiring of the negro, and that he ran away. This, in my opinion, is no proof fixing negligence on the part of the defendants. The plaintiffs must show a prima facie case, at least. Under the principles settled by this court when this case was before it heretofore, and I agree with the views and doctrines set forth and contained in that opinion, I am clearly satisfied that the plaintiff had failed to make out the case. The circuit court then might well have given the instruction asked for by the defendants, and thereby saved the time of the court, in preventing argument, and the finding of a verdict by the jury. I am fully satisfied with its action, and therefore in my opinion the judgment must be affirmed.