Reports of cases argued and decided in the Supreme Court of the State of Texas during part of Galveston term, 1852, and the whole of Tyler term, 1852. Volume 8. Page: 4
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7-8 SUPREME COURT.
Mitchell v. Mims.
The general rule is that the principal is responsible civilly for the acts of his agent, but not
criminally unless done under his express authority. The principal is responsible for the
negligent, but not, in general, for the criminal conduct of his agent.
Appeal from Colorado. This was an action brought by Mims in his lifetime to
recover of Mitchell the value of a negro girl and her hire. After the case was
remanded to the District Court by the judgment of this court at a former term,
(1 Tex. R., 443,) the parties amended their pleadings. The defense relied on
at the trial was that the negro had died, by reason of which the defendant was
unable to restore her to the plaintiff.
The evidence introduced on the one side to prove the death of the negro, and
on the other to prove that if she had come to her death it was in consequence
of the negligence and fault of the defendant, was circumstantial. There was
a verdict for the plaintiff, which was set aside; a new trial granted; a second
verdict and judgment thereon for the plaintiff, and the defendant appealed.
J. Rivers, for appellant.
I. The first point to which the attention of the court will be called is as to
the sufficiency of the demurrer of the defendant to the petition and amended
petition of the plaintiff. The petition alleges a crime that, if true, would subject
the defendant to the punishment inflicted for the crime of murder. The doctrine
that a trespass is merged in the felony is well established. The defendant
should first have been tried for the felony before a suit could be sustained.
(1 Starkie Ev., 70; 4 Greenl. R., 164; 4 N. Hamp. R., 239; 3 Greenl. R., 458;
2 Starkie Ev., 818.)
II. If the negro died without any default of defendant he cannot be held
liable for the non-delivery. If there was carelessness on the part of defendant
in sending the girl home he [8] was excused by the permission and authority
of the master; and if the jury found their verdict on the ground that the slave
was not dead the finding was clearly against evidence. And if the finding was
on the cruel and inhuman treatment there was no evidence to support it.
N. H. Munger, for appellee.
I. The question of the merger of the civil remedy in the felony could not
be of any importance in this case even if it was law, the jury evidently having
found upon the ground that it was not shown by the testimony that the negro
was dead.
II. In this case there has been two verdicts for the plaintiff, and it is not presumable
that the court will reverse the finding of the jury, especially as the
plaintiff has fully made out his case by positive testimony, and the defense, at
best, depends upon circumstantial testimony, the weight of which is properly
to be considered by a jury.
WHEELER, J. It is a sufficient answer to the first branch of the argument
of the counsel for the appellant that there was no evidence which tended in any
degree to inculpate the defendant in the commission of a felony. It is unnecessary,
therefore, to consider the question whether the common-law doctrine,
that where a felony has been committed it will merge the civil action, is applicable
here to the felonious homicide of a slave. Although there are cases in
other States of the Union in which the contrary appears to have been held, yet
we incline to think the better opinion is that it is not applicable. It is unnecessary,
however, at present to decide that question.
The argument assumes that any improper treatment of a character to attach
liability to the defendant, and which may have resulted in the death of the
negro, must of necessity amount to a felonious homicide. This, I apprehend,
is a mistake. There may have been such a want of proper care and diligence,
or even of humane conduct in the treatment of the [9] negro, as would render
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during part of Galveston term, 1852, and the whole of Tyler term, 1852. Volume 8., book, 1901; Houston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28566/m1/12/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .