Windle v. Jordan

• Decision Date: 15 May 1883
• Parties: HENRY WINDLE v. W. B. JORDAN.
• Court: Maine Supreme Court

75 Me. 149

HENRY WINDLE v. W. B. JORDAN.

Supreme Judicial Court of Maine.

May 15, 1883

ON EXCEPTIONS and motion to set aside the verdict.

Assumpsit to recover damages for an injury received from the kick of a horse which the plaintiff had hired from the defendant and was driving. The writ was dated March 26, 1880, and contained the following declaration:

[Declaration.]

" In a plea of the case, for that the said defendant, at said Lisbon, on the second day of September, in the year of our Lord, one thousand eight hundred and seventy-nine, in consideration that the plaintiff at the special instance and request of the defendant, had hired of him one horse and wagon for the purpose of riding from Lisbon, aforesaid, to Lewiston, in said county, and in return from said Lewiston to said Lisbon, for the price and hire of a reasonable sum of money, to wit: two dollars, and for other good and valuable considerations, then and there promised the plaintiff that the said horse was sound, kind, safe, and serviceable, and free from the vice of kicking, and that the same would perform well when harnessed in said wagon, and was suitable to perform said purpose and service.

" And the plaintiff in fact saith, that he, confiding in said promise of the said defendant, did, on the second day of September, aforesaid, set forward on said purpose and service with said wagon, drawn by said horse of the defendant, hired for the purpose aforesaid, as aforesaid.

" Yet the said defendant did not regard his promise, aforesaid but then and there craftily and subtly deceived the plaintiff in this, that the said horse was then and there unkind unsafe, unsound, and unsuitable for said purpose and service and that said horse was not free from the vice of kicking, but on the contrary said horse was then and there in the habit of viciously and violently kicking, all of which the said defendant then and there well knew.

" And the plaintiff avers that, in the performance of said service, the said horse was driven and managed by the plaintiff with due care.

" Yet, by reason of the said unkindness, unsoundness, and unsuitableness of the said horse for said purpose and service, the said horse then and there became restive, violent, furious, and uncontrolable, and then and there, while in said service, to wit: at said Lewiston, the said horse viciously and violently kicked the plaintiff upon his left knee and broke the knee-cap thereof, and then and there kicked the plaintiff upon his right leg and upon his thumb and finger, all without the fault of the plaintiff, and the plaintiff was thereby then and there greatly and permanently injured in his left knee, right leg, and thumb and finger, and by reason of his said wounds and injuries, then and there received, as aforesaid, the plaintiff then and there, for a long time afterwards, suffered great pain and anxiety, and became sick, sore, lame, disordered, and incapable of transacting his ordinary and necessary labor, affairs, and business; and so continued for a long space of time, to wit: ever since.

" And the plaintiff avers that his said injuries are incurable, that by reason of said wounds, injuries, and bruises so received, as aforesaid, he was obliged to expend, and did expend large sums of money, to wit: three hundred dollars, in endeavoring to be cured of said wounds and injuries, occasioned as aforesaid, and for board, nursing, medicine, and attendance.

The plea was the general issue. The verdict was for the plaintiff for the sum of nine hundred and thirty-four dollars.

The opinion states other material facts.

Hutchinson and Savage, for the plaintiff, cited: Darby v. Hayford, 56 Me. 249; Gardner v. Gooch, 48 Me. 494; Harpswell v. Phipsburg, 29 Me. 315; Purrington v. Pierce, 38 Me. 449; Stone v. Redman, 38 Me. 580; Rogers v. K. & P. R. R. Co, 38 Me. 230; McIntosh v. Bartlett, 67 Me. 130; Bachellor v. Pinkham, 68 Me. 253; Tarbox v. Eastern Steamboat Co. 50 Me. 345; Woodcock v. Calais, 68 Me. 244; Brackett v. Hayden, 15 Me. 347; Sawyer v. Vaughan, 25 Me. 337; Towsey v. Shook, 3 Blackf. 267 (25 Am. Dec. 109).

Frye, Cotton and White, for the defendant.

The plaintiff elected to frame his declaration upon an express contract. He might have declared in tort, and thus relied upon implied legal duties and obligations of the defendant, growing out of the contract of hire. The defendant pleaded the general issue, denying the promise. The case discloses an actual contest as to what contract was in fact made. The plaintiff and his witnesses claiming one thing, the defendant and his witnesses another. The plaintiff did not attempt to sustain his case upon the general obligations of a bailor.

Had this been an action sounding in tort for an alleged negligence on the part of the defendant in failing to disclose claimed faults in the horse, and founded on a legal duty on his part to make such disclosure, proof of the letting and failure to inform the plaintiff, would have perhaps cast on the defendant a burden such as the court in this case pet upon him.

But plaintiff's action being on a contract, rulings applicable to the case of a contract ought to have been given. See Wharton Ev. § 357; Tarbox v. Steamboat Co. 50 Me. 339; State v. Flye, 26 Me. 312; Powers v. Russell, 13 Pick. 76; Ross v. Gould, 5 Greenl. 210.

It should be remembered that the defendant did not admit the contract as declared on, and attempted to be sustained by the plaintiff and his witnesses, and then attempt to avoid its force by another and distinct proposition. The issue between the parties was first as to what the contract actually was. The plaintiff alleging an unconditional contract, the defendant denying it.

The counsel further contended that the instructions upon the question of the due care of the plaintiff were not ali that the defendant was entitled to have given, and cited: Benson v. Titcomb, 72 Me. 31; Lane v. Crombie, 12 Pick. 177; I. & St. L. R. R. Co. v. Evans, 6 Cent. Law J. 197; Heinemann v. Heard, 62 N. Y. Ct. App. 448; Shear. & Redf. Neg. § 43, and note.

BARROWS J.

The fallacy upon which the defendant's complaints of the instructions given to the jury are based, consists in the assumption that it was a special and express contract that the horse was kind and free from vice, that the plaintiff declared upon, instead of the promise implied by law and growing out of the relation of the parties as bailor and bailee of the animal for hire. It is true that the plaintiff and his witness to the contract of hiring, testify that both the defendant and his hostler recommended and warranted the horse, except in the matter of laziness, but that testimony was not essential to the plaintiff's case.

When it was proved and admitted that the defendant was a livery-stable keeper, and that he let the horse for hire to the plaintiff for the trip, the law settles the contract upon the breach of which the plaintiff counts; and if the defendant...