Charles Towne & Co. v. Wiley

23 Vt. 355

• Court: Supreme Court of Vermont
• Decided: February 15, 1851
• Status: Published

Opinion

The opinion of the court was delivered by

Redfield, J.

This is an action on the case, in trover, for the conversion of a certain horse. The facts which appeared on the trial were, that the defendant, being an infant of twenty years, hired of the plaintiffs, who were livery stable keepers at Bellows Falls, the horse in question, to go to Brattleboro’ and. back the same day. He went to Brattleboro’ and returned by a circuitous route, nearly doubling the distance, which, in a direct course, is twenty three miles, at about eight o’clock in the evening went to a house in Westminster, and remained until four o’clock the next morning, the night being cool and windy, and the horse exposed, during the whole night, without shelter or covering of any kind. This was on the thirteenth of July, and the horse, when returned to the plaintiffs the next morning, was sick, ate nothing, and died in five or six days, from the over driving and exposure. The court charged the jury, that these facts constituted a conversion by the defendant, and that his infancy was no bar to the action, and that the plaintiffs were entitled to recover the value of the horse, at the time of conversion, which would be when the defendant departed from the use for which he hired the beast.

The cases upon the subject of the liability of infants, for torts, when viewed with reference to their facts, may not seem altogether t consistent; but when the principle, upon which the courts profess to proceed, is examined, they will all be found to be placed upon the same ground ; and no case is to be regarded as authority, except for the principle, upon which the courts professed to proceed in deciding it. In all the cases, then, upon this subject, it will be found, that the courts profess to hold infants liable for positive substantial torts, but not for violations of contract merely, although, by construction, the party claiming redress may be allowed, by the general rules of pleading, to declare in tort, or contract, at his election.} Jennings v. Rundall, 8 T. R. 335, was entirely of this character. The form of the action was trespass on the case, for immoderately driving a mare,, let to hire by the plaintiff to the defendant, and trover for conversion. The defendant pleaded infancy to the counts for immoderately driving,, and the plaintiff demurred, and' Lord' Kenyon, in giving judgment, speaks of the defendant as a lad. But in every view of the case, the defendant was guilty of a mere omission, a nonfeasance, or breach of the implied contract, to use the- beast discreetly and carefully, and he had judgment.

Bristow v. Eastman, 1 Esp. N. P. C. 172, was assumpsit for money had and received, and on trial it appeared that the defendant had obtained the money, while in the plaintiff’s employ, by a substantia-1 fraud, in making overcharges of expenditures on. account of the plaintiff’s business, and thus effecting a false- settlement with- the plaintiff. Lord Kenyon said, that although the action was in form assumpsit,, it was in substance for a tort, and the- plaintiff might have maintained trover, and gave judgment for the plaintiff

Green v. Granbank, 2 Marshall 485, professes to go upon the same ground as the two last; but the-facts here show more of tort, in the defendant, than Jennings v. Rundall, and one ease in this-State, West v. Moore, 14 Vt. 447, professing to follow this case, has perhaps pushed' it somewhat to an extreme-. The- facts in this latter case showed, perhaps, something more than a mere- nonfeasance,. or breach of contract. But this case also professes to go upon the same general ground, and the court, deciding it, are- alone- responsible for the construction of its facts.

Applying these general principles to the case- before us, it seems to us, that the distinction taken in the court below is the true one. So long as the defendant kept within the terms of the- bailment, his infancy was a protection to him, whether he neglected to take proper';! care of the- horse, or to drive- him moderately. But when- he departs" from the object of the bailment, it amounts to a conversion of the property, and he is liable as much as- if he had taken the horse in the first instance without permission. And this is no hardship;. for Ithe infant as well knows, that he is perpetrating a positive and substantial wrong, when he hires a horse for one purpose and puts him to another, as he does, when he- takes another’s property by way of trespass.

The case of Homer v. Thwing, 3 Pick. 492, is, in all its leading facts, and every way, in principle, identical with the present. The case of Fitts v. Hall, 9 N. H. 441, goes even farther, perhaps, and yet we like the good sense and love of fair dealing evinced by the decision of that case. There, an infant, by representing himself of full age, gains credit, giving his note, and when sued upon the note, avoids it on the ground of infancy. The court held him liable for the goods, in trespass on the case. It may not be important to inquire how far this decision will stand with Johnson v. Pie, 1 Lev. 169; S. C., 1 Keb. 905 ; Ib. 913; 1 Sid. 12910 Petersd. Ab. 559, or with some other of the old cases. But for one, I must say, I like the truthfulness and 'firmness' evinced in the decision. It seems to me to be a case far more worthy of respect, than that class of cases, where the courts have shown so much solicitude to give the infant the benefit of my Lord Mansfield’s shield, that they have allowed him sometimes to use his privilege as a weapon of offence also. The case of Vasse v. Smith, 6 Cranch 226, goes much farther than it is needful to go, to make the defendant liable in the present case, and yet not farther than sound policy and a proper regard for fair dealing would seem to require. Campbell v. Stakes, 2 Wend. 137, is a full authority for the plaintiff, in the present case. And, if no case in point were produced, it seems to us, upon general principles, the plaintiff is entitled to retain his verdict.

Judgment affirmed.