The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1891-05-15
In the Supreme Court Of the Ha.
waiian Islands.
In Banco.
SPECIAL TERM, MARCH 80, 1891.
d. p. r. IsENBERa, w. II. CoRNwELL
AND S. /. SHAW, doing business
as the Hawaiian Hotel Stables,
vs.. ELIZABETH X. CUMMINs.
BEFORE JUDD, @. J., M'CULLY, BICKER-
TON AND DOLE, -.
On exceptions to the verdict as be-
ing contrary to the law and the
evidence.
An infant who hires q horse for pleasure
driving is not liable for damages for
the death of horse, it appearing that
the horse died from immoderate and
careless driving merely and not in con-
sequence of a willful tort on the part Of
the infant bailee.
BEFORE JUDD, G. J., M'cULLY, BrCKER-
TON AND DOLE u.

OPINION OF JUDD, G. j., AND M'CULLY, J..
The facts of the case are substan-
TALLY as follows:
At about 2:3O o'clock on Sunday
afternoon the 21st September, 1890,
the defendant, then within . few
days of her majority, engaged by
telephone of the plaintiffs stables q
horse and phaeton for q pleasure
drive. There was nothing said as
to the length of time of hiring or the
particular course to be taken. The
defendant drove the horse during
the afternoon having her sister IN
the phaeton with her and part OF the
time a third passenger, and the horse
was returned to the stables at about
p. M. in an exhausted condition.
The animal refused his food and
though q veterinary surgeon was
called in he died within three days,
apparently from the overdriving.
The drive was long one, to the
Park three times and back and up to
Judd street and Kapalama, in all
from 35 to 40 miles within the space
of four hours. The horse was free
one and did not need whipping nor
urging. There is no evidence that
it was raced or cruelty treated, ex-
cept that it was undoubtedly driven
beyond its power of endurance. The
defence set up was infancy. The
verdict was for plaintiff, $500 dam
ages, and it is excepted to by defend
ant as being contrary to the law and
evidence. Under objection by the
plaintiffs, the jury were instructed
by the Court that Sin order to hold
the infant defendant they must find
the injury to the animal to have
been willfully and Intentionally com
mitted, but that they might find the
willful intent from the surrounding
circumstances and not necessarily
from declarations, none such having
been proved"
The question is whether the evil
dence sustains the verdict or whether
the jury clearly ignored the law.
The law was correctly given to the
jury. "To render an infant, who
has hired a horse, liable in an action
for trespass, he must do some willful
and positive act which amounts to an
election on bis part to disaffirm the
contract: bare neglect to protect
the animal from injury and return
it at the time agreed upon is not
sufficient" "If he willfully and in
tentionally injure the animal an &C
ton of trespass will lie against him
for the tort, but not if the injury
complained of occurred in the act OF
driving the animal through his un-
skillfnlness and want of knowledge,
discretion and judgment"
Moore vs. Eastman, 8 Supreme
Court, New York, 578.
The Court in this case say Acts
however aggravated which merely
establish breach of contract on the
part of the infant manifestly are in
sufficient. The plaintiff cannot con-
vert anything that arises out OF q
contract into q tort and then seek to
enforce the contract, through the
medium of an action &c delicto. There
must be q tort independent of the
contract. The tort cannot
be predicated of use of the animal
in the course Of his bailment, how
ever excessive, unless the excess was
such as to indicate that it was re-
sorted to for purpose beyond that
for which the horse was hired"
In Eaton vs.. Hill, 80 Nh, 235, the
horse was hired by an infant for a
short journey, and drove him SO
carelessly and immoderately as to
cause his death. The Court say:
When the infant stipulates for
ordinary skill and care in the use OF
the thing bailed, but fails for want
of skill and experience, and not from
any wrongful intent, it is in accord
ance with the policy of the law that
his privilege, based upon his want OF
capacity to make and understand
such contracts should shield him."
Z" We think then that the doctrine
is we'll established that an infant
bailee of horse is liable for any
positive and willful tort done to the
animal distinct from a mere breach
Of contract-as, by driving to place
other than the one for which he il
hired, refusing to return him on de-
mand after the time has expired
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