Southern Pacific Railroad v. Dial

25 Tex. 681

• Court: Texas Supreme Court
• Decided: July 1, 1860
• Status: Published

Opinion

Roberts, J.

The only breach of the agreement of hire alleged in the petition is, “ .that said defendant failed and refused to inform your petitioner of said negro’s sickness, and failed and refused to send the negro, so sick, to your petitioner.” Another breach is assigned, which is of the implied duty of defendant as bailee of the slave on hire, “ that said defendant neglected and ill-treated said negro during his sickness, and that said negro died on or about the 30th day of March, A. D. 1857, by reason of such neglect.” The defendant filed a general denial, which put in issue these facts, and imposed upon the plaintiff the burthen of establishing them as the breaches upon which he must recover. The pleadings do not require the defendant to meet any others, as the breaches either of his contract or of his duty as bailee. The evidence tended to show that the defendant did cause the plaintiff to be informed of the sickness of his negro. It is not pretended that defendant sent the negro to the plaintiff upon his becoming sick. There was no evidence which could well be deemed satisfactory that the defendant did neglect and ill-treat the negro while under the control of defendant, which caused the death of the negro. Whether or not the evidence established the truth of the facts alleged in both or either of these two breaches as set up in the petition, were the proper questions to have been submitted to the jury under the issues made by the parties. The charge of the court presents a somewhat different issue for the jury to determine ; which was, whether or not defendant failed to inform the plaintiff of the sickness of his negro in a reasonable time, or failed to send him to the plaintiff in a reasonable time. The plaintiff by his breach does not present any issue upon the question of reasonable time, as he might have done under the contract. The defendant, under the contract, had the option to send the negro to the plaintiff, or to inform plaintiff of his sickness. The plaintiff set up the contract as broken, because the defendant had done neither the one or the other. He, the defendant, went to trial prepared to prove, or with evidence strongly tending to prove, that he had done one of the things, thereby disproving the plaintiff's allegation as made.

But the charge requires something more, and puts the defendant in the same position as if plaintiff had alleged “that the defendant did not inform him of the sickness of the negro, or send him to plaintiff; or if he did inform plaintiff it was after a reasonable time to have done so had elapsed.”

Had the plaintiff chosen to have presented the issue in this manner, it would have put the defendant upon notice to be prepared to show, not only that he had given information of the sickness, hut also to show the incidental facts which are involved in the question of reasonable time; that is, the character and violence of the disease, the manifestation of its symptoms, its progress and the attention given to ascertain what was the matter, and the like, together with the relative locality of the parties, &e.

Upon the breach of neglect and ill-treatment, the evidence is too slight to require any remark.

The judgment is reversed and the cause remanded.

Reversed and remanded.