The plaintiff claims $600, with interest, alleged to be a balance due him on a settlement made with the defendant’s agent on the 12th of March, 1852, for his salary as overseer of the plantation of the late James W, Mason.-
*520The defendant claims in compensation and reconvention, $1000, averring that her agent retained in the settlement $600, in payment of a negro man named Jim Crack, one of the slaves attached to the plantation, who died in Jan., 1852, in consequence of having been cruelly whipped and beaten by the plaintiff.
The alleged reservation is in these words:
“ On this 12th of March, 1852, John C. C. Sharp, agent for the estate of J. W. Mason, has paid to Warren G. Kennedy, as stated above, the sum of $866 15, which by agreement is applied first to extinguish the balance due on the obligation of said John C. O. Sharp for estate, dated Jauuary 1st, 1851, which is surrendered to John C. O. Sharp, agent, and the balance of the said amount paid is to be imputed as far as it goes to the payment of the wages for the year 1851, said Sharp refuses to pay the balance, $600, until it shall be ascertained judicially, whether the death of the slave Jim Crack was caused by any improper treatment of said Kennedy. March 12th, 1852. Signed in duplicate.
W. G. Kennedy,
John C. C. Sharp.”
The question then to be considered, in order to fix the liability of the plaintiff, is, whether the death of the slave Jim Crackwaa caused by any improper treatment or imprudence on the part of the plaintiff.
The testimony of Ferand and Fife is assailed by the plaintiff’s counsel, as unworthy of credit. If discarded, it is contended by them, it would leave the defendant’s demand entirely unsupported by proof. On the other hand it is also asserted that some of the plaintiff’s witnesses are unworthy of belief, as their testimony is contradictory. Leaving the testimony of the first out of view, although it appears to us corroborated by some of the plaintiff’s own witnesses in relation to the material facts. We think it may be safely assumed that the record exhibits the following state of facts: The slave Jim Crack had runaway and been absent for some time from the plantation, when he was captured and brought back on the 5th of January, 1852, about seven o’clock in the evening, the weather being extremely cold. He was shortly afterwards stripped of his clothes, tied down with his belly to the cold ground, and beaten with a hand-saw and whip ; he remained in that position at least an hour and a half, during which the beating continued with short intermissions. He was then rubbed with a mixture called No. 6, and a dose of castor oil was administered to him. Mr. Butler, whose testimony stands unimpeached, says: “ I saw the boy standing up with a negro on each side, holding him up; when they turned him loose, he staggered, and fell. The negro called one of the others, by name John, and asked him to help him up; the boy helped him up, and took him out of the gate.” It appears he was then conducted to his cabin, and about four hours after, found dead in his bed. Dr. Roane, who made a post mortem examination of his body the next day, about sixteen or eighteen hours after his death, says; “I saw that he had been whipped and considerably bruised on his buttock, and each side of his shoulders. The buttock and sides of the shoulders did not appear much cut, but considerably bruised, from which the blood oozed and stuck to the shirt in a few places. That amount of whipping under ordinary circumstances, would not produce death. I thought it imprudent to whip the boy at that time and under the circumstances. Prom internal and external indications, I think it more likely that death was caused by a congestive chill,’ than by the whipping; but more likely death in this case was caused by a combination of all the circumstances.” Under this state of facts we do not think it is unreasonable to infer that the slave's *521death was caused by the severity of the punishment inflicted upon him, combined with his exposure to the weather. Had the plaintiff taken proper care of him after he retired to his cabin, he might have averted the unfortunate consequence : but he did not. This was gross negligence on his part.
Our code provides, Article 2295, “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” Conceding to the plaintiff the fair reputation which he seems to enjoy as a good and humane overseer, and the approbation of the defendant during the long period be was employed by her as such, yet, we think in this instance, he permitted his passions to mislead him into the commission of an act highly improper and imprudent. The punishment inflicted by him, notwithstanding the opinion of some of the witnesses to the contrary, was excessive and cruel; and, as Dr. Roane says, imprudent “at that time and under the circumstances.” The Civil Code, Art. 173, Provides: “The master may correct and chastise him, though not with unusual rigor, nor so as to maim or mutilate him, of to expose him to the danger of loss of life, or to cause his death.” In Hendricks v. Phillips, 3 An, 618, Mr. Justice Slidell, as the organ of the court said: “ It may be conceded that the planter who employs an overseer, in the absence of orders to the contrary, delegates to him the power of punishment contemplated by law, and necessary for the preservation'of discipline and the public order. But, certainly, the overseer is restricted by the same measure of power which the law has imposed upon the owner; and, if he transgresses it, he violates his duty, and is answerable to his employer in damages, and to public justice which he has offended.”
We therefore conclude that the plaintiff is liable to defendant forthe value of the slave in question as provided for in the reservation made between him and the defendant in their settlement.
It is therefore ordered and decreed that the judgment of the District Court be avoided and reversed, and that the defendant’s plea of reconvention he allowedj to an amount sufficient to extinguish the plaintiff’s claim, and that the said plaintiff pay the costs of both courts.