Arizona weekly citizen., 1882-11-26
LEGAL LORE.
Opinions Rendered by Hon. W. ". Hoover Judge of the First Judicial District of
 

Arizona
 James Carol, plaintiff vs- J. W. Chip man, defendant.
 In this case the facts are defendant
 hired a team from plaintiff, who Is liv eryman, making d bargain for C three
 days trip with an employee of plaintiff
 who was in charge of the stables. 1t la
 in prOot asd l must consider the con
 tents of the deposition as true in this
 regard upon the settled principle that
 where party has It in his power to prove
 fact, and fails to do so, that 1t shall
 be taken against him. In this case the plaintiff neither places his employee on
 the stand or explains hls absense, and | therefor the statement Of defendant es- | tablishes the fact that Le stated to | plaintiff that he was going over des-
 ert country poorly y-tered, and asked | for some buckets tO carry water m, that | being the custom of inc country in making such trips. That plaintiff failed | 10 susply him herewith. In SD lar as any sickness Of tue horse was Occa-
 stoned by thirst, the plaintiff contribut- ' e1 thereto.
 Defendant returned to plaintiff one horse within the appointed time, and accounting for hls failure and cOnse- quent refusal to return the remaining animal, stated that 1t, tse other animal,
 was dead. This statement. so far as It
 was against his interest to make 1t, was conclusive, and us the law never re- quires that which Is idle to be done, a formal demand and formal refusal for the return of dead horse would have been an empty form and d vain thing. thlnk in thIs case demand and refusal was excused by the statement yolun- teered by defendant.
 This action IS brought in assumpsit, and If 1t IS a case where the tort may be waived, then all the incidents of an action III assumpsit flow from its adop- tion; one of these IS an implied promise to pay the money upon demand, and the bringing of suit IS good demand, though, az above stated, the tort IS an unlawful. conversion, and on that issue of conversion from the evidence III this case depends not only the form of action, but its merits as well. l think that the reason of the case, as well as weight of authority supports assEmp- | sit where defendant has destroyed the l property. Leaving then this point, the | proofs show that the defendant | drove a reasonable distance, and | 1T the team was not sufficiently | watered the plaintiff certainly contrib | uted to the negligence of defendant Tn | that regard If negligence Is to be pre- sumed. This brings Us to a consideration of the proper course of action of defen- dant when he discovered the horse to be sick, and here 1 will cite the rule here tofore stated that when party has 1t in his power to produce evidence and fails to produce the presumptions are adverse to him. Defendant testIties that one James Miller was his companion on this trip and he neither produces this witness nor excuses the fact of his not doing 50, and his testimony regarding the following events are to be viewed with suspicion. It Is in evidence that the horse vas a free traveller, defendant ad- mlts that after getting IL up, subse- quent to it's laying down and showing signs Of distress, 1t travelled reluctantly | and did no work, except to hold up its neck yoke. It Is an evidence III thIs con nectIon that there were habitatiOns within a few miles of Tucson, and that he drove tO within or miles and there the horse would not drink, and he . yet forced IL on toward town tIll within ! or miles of Tucson where 1t died. No authority IS produced to sustain the that bleeding was an or iinary or proper method of treatment and the Court cannot indulge in any pre- in defendants favor in that i regard. Consideration of the fact that de- Iendant was out on q desert in an arid and uninhab;ted region would justify aim both as a matter or fself-preservation and for that of the horse, to get the !, horse to some habitation or to food and !, water rather than to abandon it there |, which would be the same as killing it. : But when he reached the inhabited . country the law regarding a bailee re- luiring him to treat this animal as a pruden. man would his own property, ; would have compelled him to have I taken the horse where 1t could get food and rest. The necessity on his own 1. part was gone for continuing his : journey with the horse for he was charged with the duty of procuring a yell animal. That rest was essential, was evidenced by the horses own ac- 1, non, and where prudence would dictate est and care, ald such was not given to V (, the death will be presumed to result rom the act of defendant. Refusal 70 eat or drink are mere symptoms ,f sickness, for ID his normal condition [ hOrse will eat and drink. The fact of T he horse being in an unfit condition vas here otherwlse evidenced by his re- usal to travel, this is admitted.
 It was negligence to pass any habita- | ion and cOutiuue tha iOurnpv
 IL is urged that it was prudent tS bring f he horse in. l cannot so hold. IL was by its actions that its greatest Iced was rest, a cessation of physical 'Ierticn, and the death but confirms his view. If he had left the horse by he side of the road without care 1t | would have been negligence, but he T hould have procured it care and stten- ion at the first habitation or have tried z o to do and have demonstrated his in- \ lbility by special circumstance so to do. . Now as to the question of the paying ,f the SIS constituting settlement of ' III demands, defendant made a contract # hiring upon it a certain sum was 7 lue plaintiff. This loss of the horse was t. tort, 1t was for plaintiff to waive his t. laim as damages and treat it az a debt / lot defendant, tue buggy hire and the \ laim for the value of the horse were I wo separate causes of action and unless | he minds of the two parties agreed up : m the proposition that plaintiff by nam ' ng SIS intended to waIve his right of ' ction for the value of the horse, l can [ lot hold him to have done it.. It Is apparent on the face of the evil Ieuce that plaintiff did not have tin his hind so to do and as defendant did not pecially mention the claim for the lorse either as to its payment or it's valve and I am left tO cOnstrUe the T 'ords q asked what my bill was and he aId eighteen dollars | must do go sith reference to the further proof that . iG per day was the ordinary hiring q harge and that the sense in which llaintIff understood him was the in- : accrued for use of horse and .uggy. To constitute this payment in full of all demands 1t must ave been so paid and so received, or | he defendant instead by willful acts or | representation of plaintiff, this he was 7 7 lot, for he does not even testify that he ! himself SO understood the effect Of the !. 'ayment. 2 Under this vlew of the case the plain : fir is entitled to recover the amount ! ,rayed for and his costs, let judgment ' ie entered accordingly.
 WILSON W. HoovzR, :
 Associate Justice. J Dated October 13, 1882. '