Brown v. South-Western Railroad , 36 Ga. 377 ( 1867 )

Walker, J.

1. The Eailroad Company insisted that it was not liable for carrying off plaintiff’s slave, because a white man, who had stolen the negro, had possession of him, and the negro was received on the cars upon the idea that he belonged to the thief; that possession of personal property is prima faeie evidence of title, and in such a case as this, would be such evidence as would relieve the Eoad from liability, as showing reasonable care and diligence to guard against doing to any one a wrong. A sufficient reply to all this is, that the act of 21st February, 1850, (Cobb, N. D. 399-400,) says, “That if it shall be made to appear that any negro slave shall escape on any railroad car, locomotivo or tender, without written permit from the owner, overseer or employer, such owner, overseer or employer may recover by suit, in any court of competent jurisdiction, the amount of the value of said negro, and the amount of all expenses of the suit incurred, from said railroad company.” In the absence of a written permit from the owner, overseer or employer, the Eoad had no right to receive the negro on board its cars, and the Court did right to hold it liable. We therefore affirm the judgment in the bill of exceptions prosecuted by the Eailroad Company.

2. We cannot sanction the rule laid down by the Court as to the measure of damages in this case. Plaintiff was entitled to recover as damages, not only for the hire of the slave during the time he was absent, with interest added, but he was also entitled to recover the reasonable and necessary expenses incurred in reclaiming him. What this amount would be, will depend on the facts of the case. Defendant has a right to mitigate the damages by showing, that though the slave was carried off in its cars under such circumstances as make it liable, yet as the plaintiff subsequently reclaimed his slave, his actual injury was to that extent diminished. Had the Road reclaimed the negro and delivered him to his master, then the rule laid down by the Court would have been correct; but as it did not do so, and the recovery was due to the efforts of the master, it is right that the Road should pay the reasonable and necessary expenses incurred in securing and returning the negro.

3. The cause of action in this case having occurred before the Code went into effect, the Court did right to charge that plaintiff was not entitled to recover double damages, as provided for by section 2982 of the Code.

Judgment reversed.