The Hawaiian gazette., 1891-05-26

and disafirms the contract, he then
becomes liable in tort to the other
party for the article hired.
In the case before the Court, it
was necessary, before the jury could
find for the plaintiff, that there
should be evidence showing a 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. If
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.
McDufie (4S n. II. 402), 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 willfully
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 right 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 ne was so injured, it was
conversion, and she was liable.
Whether she willfully SO drove the
horse was a 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,
and that after her first trip to Wal
kiki, noticing that the horse was
4" full of froth," she went home and
had it rubbed down, shows that to |
some extent she understood the care |
of horses. Here was evidence direct |
ly bearing on the defense of heed |
lessness and want of experience and
Judgment. Together with this, and |
as bearing on the same question, the |
question whether the injury resulted |
from willfulness or want of discre-
ton, is the other evidence of ipjur-
ious treatment, substantially as fol-
lows: A free horse, pulling some on
the bit, is driven in about three hours |
and half to Waikiki. back to Homo
lulu, to Waikiki again, back to Homo |
lulu, up to Judd street, down Liliha |
street and out King street to the |
slaughter houses at kalihi, thence |
to Kapiolani Park and back 10 Homo |
lulu, is occasionally whipped during |
the driving, is returned TO the own
ers III a state OF great exhaustion
and high fever, and in three days
dies IN consequence of oYer-driying,
in the opinion of the surgeon who
him.
From this evidence, both of i'm
proper treatment and of knowledge
and discretion on the part Of the de-
PENDANT, the jury rendered verdict
for The plaintiff.
We are satisfied that there was
evidence before them which justified
them in presuming that the injury
was willful.
It seems on principle that where
a particular intention, knowledge or
state Of mind in the person charged
as a wrongdoer, is an element, as it
is, in constituting the
alleged wrong, the age and mental
of the person may and
should be taken into account, along
with other relevant circumstances,
IN order to ascertain as a fact
that intention, knowledge,
or state of mind was present" Is
Pollock's Law Of Torts, 49,
The decision appealed from over
ruling the motion for a new trial
should be sustained
NoTE-The Court being equally
divided on the question of the liza
1ility of the defendant. the verdict
IF the jury stands.
Nov LET 1901