The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1891-05-21
Supreme Court, of the Hawaiian
Islands.
Continued from Page IL

and having a good time and not
paying any particular attention TO
the horse. by E. K. Cummins, de-
fendant.)
Had charge of the horse when |
jumped in; drove it slowly whipped
it occasionally, not hard. tBy 4.
Stiles.)"
The question before US is, was
there evidence in support of the YER
dicta
The contract of an infant may not
be enforced by the other party unless
it is affirmed by the infant upon be-
coming of age. But the principle is
generally recognized that where an
infant makes a contract by which he
has the use of something for tlme'
and disaffrms the contract, he then |
becomes liable in tort to the other |
PARTY for the article hired.
In the case before the Court, II
was necessary, before the jury could
find for the plaintiff, that there
should be evidence showing dis
afirmance of the contract on the
part of the defendant. Is there such
evidence?
A contract of hiring, like the one
in question, implies a covenant to
exercise ordinary care and skill to
protect the animal from injury. Ii
the evidence shows that the infant
after obtaining possession OF horse
under such contract, willfully abuses
and Injuries it, it is tort and he Is
liable for it. Il Parson on Contracts,
1851 In the case of Wentworth v.
McDuffie (4S n. FL. 4O2), which was
| an action of trover against an adult
for driving hired horse SO immod-
erately that she died, the Court held
that ''the act Of the bailee IN wiilfully
and Intentionally driving the horse
at such an immoderate rate OF speed
as he knew would seriously endanger
the life of the horse, is at least as
marked an assumption of ownership
and as substantial an invasion OF the
bailor's light of property, as the act
of driving the horse at moderate
rate of speed one mile beyond the
place named in the contract OF hir-
ing" This applies to the case be-
fore us, for the defendant being an
infant does not affect the principle
of this authority, infants being liable
for torts. The defendant hired the
horse under an implied stipulation
for ordinary care and diligence to
protect the horse from injury. She
was not limited by the contract as
to time or distance. If she willfully
drove the horse such distance at
such speed as was likely to injury
him, and he was SO injured, it was a
conversion, and she was liable.
Whether she willfully so drove the
horse was question for the jury on
the evidence, if there was evidence
on this point. The counsel for the
defence argues that there was NO
such evidence submitted to the jury
and claims that if the injury result.
ed from overdriving, it was on &C
count of want of Judgment, or from
heedlessness and want of knowledge
That part of the evidence quoted
above, shows that the defendant was
within few weeks of being of age
and that she was accustomed to take
out driving horses; the evidence that
!, she noticed the condition of the
horse when it was delivered to her
e and that after her first trip to Wal
kiki, noticing that the horse was
"full of froth," she went home anC
had it rubbed down, shows that t.
some extent she understood the care
of horses. Here was evidence direct
= ly bearing on the defense of heed
lessness and want of experience an(
Judgment. Together with this, and
as bearing on the same question, thu
question whether the injury resulted
from willfulness or want Of discre
% ton, is the other evidence Of injur
ious treatment, substantially as fol
lows: A free horse, pulling some OF
the bit, is driven in about three hour
and half to Waikiki. back to Homo
;. lulu, to Waikiki again, back to Homo
lulu, up to Judd street, down Lilih
street and out King street to tn
' slaughter houses at Kalihi, theme
to Kapiolani Park and back to Homo
} lulu, is occasionally whipped durinj
the driving, is returned to the OWL
ers in a state of great exhaustio
and high fever, and in three day
dies in consequence of over-drivins
in the opinion of the surgeon VIII
attended him.
;, From this evidence, both of in
proper treatment and of knowledg
and discretion on the part OF the d.
PENDANT, the jury rendered verdie
=. for the plaintiff.
y We are satisfied that there wa
evidence before them which justitie
them in presuming that the injur
was willful.
1T seems on principle that wher
a particular intention, knowledge {
state of mind in the person charge
as a wrongdoer, is an element, as
sometimes is, in constituting tn
alleged wrong, the age and ments
capacity of the person may an
should be taken into account, alon
with other relevant circumstance
in order to ascertain as fat
D. whether that intention, knowledg
or state of mind was present"
Pollock's Law of Torts, 35.
The decision appealed from owe
ruling the motion for a new tri,
should be sustained.
g. NoTE-The Court being equal
divided on the question of the lii
bility of the defendant, the verdi,
Of the jury stands.
May LIST, 1891.