Dailey v. Dismal Swamp Canal Co., 24 N.C. 222, 2 Ired. 222 (1842)

June 1842 · Supreme Court of North Carolina

24 N.C. 222, 2 Ired. 222

ENOCH P. DAILEY vs. THE DISMAL SWAMP CANAL COMPANY.

In an action on the case, unless the injury complained of be of such a nature thai actions can continually he bronght from time to time, the jury may assess all the damages the plaintiff has sustained up to the time of the trial — they are not confined to the damages sustained previous to the date of the writ.

An appeal from the judgment of the Superior Court of Law of Camden county, at Spring Term, 1842, his Honor Judge Manly presiding. It was an action on the case brought to recover damages for the negligence of the defendants’ agents, in consequencs of which a canal boat belonging to the plaintiff was sunk, and his negro Aaron drowned. It was proved by the plaintiff that he hired the negro Aaron from one Ambrose Walston for the year during which he was drowned, at $65 for the year. The plaintiff then offered to prove the terms of the contract of hiring bel ween him and Walston. This testimony was objected to by the defendants, but was received by the court; and the witness stated that it was a part of the contract that the negro should not be sent by nor employed on the canal of the defendants, . except at the risk of the plaintiff. The plaintiff then asked the witness, who was the owner of the slave, what was tire value of his, the witness’, estate in the negro. This testimony was objected to on the part of the defendants but was received by the court, and the witness stated that he valued his estate in the negro at $300, but, upon cross examination by the defendant’s counsel, stated that he recovered of the plaintiff only $75. The plaintiff also offered evidence to prove negligence on the part of the defendants’ agents in the management of the canal, from which the injury resulted. The only question submitted to the Supreme Court in this case, is as to the amount of damages for the loss of the negro, and on this point the presiding judge charged the jury that the plaintiff was not only entitled to recover the value of the negroe’s services for the residue of the year for which he was hired, but also the $75, or such other sum as should compensate the plaintiff for the additional interest which he had in the preservation of his life. A verdict was returned in pursuauce _ of this instruction, and a new trial having been refused, judgment was rendered in favor of the plaintiff, from, which, the defendants appealed.

Kinney for the plaintiff.

A. Moore and Iredell for the defendants.

Daniel, J.

The declaration is in trespass on the case — . plea not guilty. The question was, whether the jury could be permitted to include in the damages the $75, which sum the owner of the slave had recovered of the plaintiff upon the contract of hiring mentioned in the case. The judge was of opinion that the jury might inelude it; and we think he was right. Unless the injury is of such a nature as that actions can continually be brought from time to time, the jury may give all the damages fairly sustained by the plaintiff up to the time of the trial, and they are not confined to the damages sustained previous to the date of the writ. Where a libel on a ship was published in a newspaper on the 31st of October, and the plaintiff commenced his action 011 t^e^th of November, it was held that, in the estimate of damages, the jury need not confine themselves to the dam-a„es which occurred between the publication and the bring- ’ , . , , , , „ ing of the action, but might give damages for the loss of passengers, in consequence of the libel, subsequent to the date of the writ, and before the trial. Ingram v Lawson, 38th Eng. C. L. R. 136. The master of an apprentice brought an action on the case per quod servitium amisit against the defendant, whose dog (known and accustomed to bile mankind) had bit the hand of the apprentice and rendered him incapable of doing his duty as a watch-maker. The declaration alleged, as special damage, the loss of service during the term, in consequence of the permanent injury. Held that the jury might award damages for the loss of the master, up to the end of the term, by reason of the permanent injury of the apprentice, and that they were not limited to give damages for the loss up to the commencement of the action only. Hadsall v Stallbrass, 38th Eng. C.L. R. 35. In the case now before us, the plaintiff’s loss of the $75 was clearly in consequence of the misconduct of the defendants’ servants in the management of their business, and the remedy was an action on the case. The judgment must be affirmed.

Per Curiam, Judgment affirmed.