Jones v. Allen, 27 N.C. 473, 5 Ired. 473 (1845)

June 1845 · Supreme Court of North Carolina

27 N.C. 473, 5 Ired. 473

WILLIE JONES & AL. vs. THOMAS T. ALLEN.

The hirer of the slave, and not the general owner, is liable in an action for medicine and medical services rendered the slave, while the term of 'hiring continued, the services and medicine not being rendered at the request of the owner, but at the request of the hirer.

A particular custom in a county, that the general Owner shall pay these ex- ■ penses, does not vary the law.

The case of Haywood, v. Long, previously decided at this term, ante p. 438, confirmed.

Appeal from the Superior Court of Law of Person County, at the Spring Term, 1845, his Honor Judge Caldwell presiding.

This was an action of assumpsit for $ 60 commenced by warrant. The facts appearing on the trial were these. Tha plaintiffs are physicians, practising in partnership, and declared for professional services, rendered in 1843, to a female slave, the property of the defendant. The plaintiffs proved that Mr. Samuel Watkins hired the said slave for the year 1843, from the defendant’s agent, and that, while the slave was so in his possession, she was ill and required medical aid, and that he, at the instance and request of the said Mr. Samuel Watkins, rendered the services, for which this action was brought. The plaintiffs then offered to prove by the same witness, that, in the section of country (Caswell County,) where the hiring took place, it was the universal custom for the owners of the slaves to pay the expense of the medical attendance, requisite for the slaves, while hired out, without charging the hirer with it. This evidence' was objected to by the defendant’s counsel and excluded by the Court. The Court charged the jury, that, upon the testimony submitted to them, the plaintiffs were not in law entitled to recover. There was a verdict and a judgment accordingly for the defendant, from which the plaintiffs appealed.

Kerr for the plaintiffs.

Venable for the defendant.,

Ruffin, C. J.

The question in this case is the same, that was decided in the case of Haywood v. Long, ante p. 438, at the present term, except that the plaintiff offered to prove, “that in the section of the country, where the hiring took place, it was the custom for the owner and not the hirer, to pay for medical attendance on a slave which was rejected by the Court.

No doubt the liability of the general and temporary owners of hired slaves, for the expenses of their maintenance and medicine during sickness, is often, and, perhaps, generally the subject of special contract between them. But, without some stipulation on that point, the general rule of law, as we have held it in the case mentioned, must operate, and cannot be controlled by any understanding to the contrary in particular neighborhoods, There is no established general custom on the point; for, if there was, that would, in truth, be the law. But a mere local usage, in a small part of the country, cannot change the law, and give the plaintiffs an action against one man, when they were employed by another.

Per Curiam, Judgment affirmed.