Mayor of Columbus v. Howard

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] Was the Circuit Court right in refusing to strike out the count in trover in the declaration ?

The object of pleading is for both parties to state their cases— the claim of one and the defence of the other. The rules of pleading are founded, undoubtedly, in reason and good sense, and accuracy and justice were their object. They were intended, however, for a comparatively ignorant age, and like all things human, they are susceptible of improvement, and should, undoubtedly, be adapted to the advanced state of the age and of modern jurisprudence. Whatever of good sense they contained should be preserved; their subtlety and prolixity should be abandoned.

The first and great rule of pleading should be, to compel the litigant parties to disclose fully, plainly and distinctly, the real nature of their respective pretensions. And I feel constrained to admit, that the fiction in trover fails to convey any very definite idea or information upon the subject of the action. The very same words, as *217 might be readily shown, would apply equally to a dozen different causes of action. And yet the Legislature has not seen fit to administer the proper corrective.

Previous to 1847, they had had the subject matter of this proceeding directly under consideration, and made no change in the plan of declaring. In 1847, the Legislature prescribed a form of action for the recovery of personal property; still it was not made obligatory on parties plaintiff to adopt it. It was left to their option. They contented themselves with providing that no departure from the “prescribed form” should work a nonsuit, pro vided the plaintiff, in following the new form, should plainly and distinctly set forth his cause of action.

It is obvious, therefore, that no Court is at liberty to compel a party to abandon the old form, the Legislature itself having refrained from going so far,

[2.] Next, as to the competency of the admissions made by members of the City Council. Counsel for the defendants sought to exclude them, under the rule of evidence which protects overtures made between litigating parties, with a view to an amicable adjustment; but the acknowledgments here made and attempted to be proven, do not fall within that rulé. The rule itself is founded in public policy. There should be no discouragement to compromising disputes, for fear that if not completed, the party making advances may be injured. Independent facts, however, admitted during the treaty for a compromise, may be given in evidence as confessions. This limitation or exception is laid down in Starkie, Phillips and Greenleaf, and has been recognized in reported cases. Marsh, vs. Gold, 2 Pick. 285. Sanborn vs. Wilson, 4 N. Hamp. R. 508. Hyde vs. Stone, 7 Wendall, 354, Hartford Bridge Co. vs. Granger, 4 Conn. R. 142. Fuller vs. Hampton, 5 Conn. R. 417. Delogny vs. Rentoul, 2 Martin’s Loui. Rep. 175. Hamblett vs. Hamblett, 6 New Hamp. R. 342, ’43. 1 Moody & Malk. 466. Per Lord Kenyon, 1 Esp. 143. Anthon’s Rep. 190. 4 Cowen, 635. In Slack vs. Buchanan, Lord Kenyon went so far as to hold, that he would receive evidence of all admissions, such as the party would be obliged to make in answer to a bill in Equity, rejecting none but such as are merely concessions for the salte of making peace and getting rid of a suit. Peake’s Cases, 5, 6. It was ruled in the same case, that admissions made before an arbitrator are receivable in a subsequent *218 trial of the cause, the reference having proved ineffectual. See, also, Gregory vs. Howard, 3 Esp. 113.

It will be seen, by reference to the testimony, that the admissions were made merely because they were facts; that there was nothing confidential in them, and that they had no reference whatever to a compromise, there being no treaty proposed or pending for any such purpose.

[3.] A verdict having been rendered for the plaintiff, a motion was submitted' for a new trial :

1st. Because the-finding was contrary to evidence and the charge of the Court: and

2d. Because the Court erred in admitting the evidence of Washington Toney as to the admissions of the City Council.

The application being refused, defendants, by their counsel, excepted.

We have already disposed of the second ground, in the motion for a new trial. It only remains, therefore, to inquire whether the vei'dict was contrary to the evidence arid the charge of the Court. The Court charged the Jury, that if the defendants had the negro in their employment, as contemplated by the contract of hire, and he was killed without any neglect on their part, that then they were not liable, otherwise they were.

It is not complained that the law of the case was not correctly stated. But assuming that to be true, a re-hearing is asked, because the verdict is contrary to the charge. Surely it will not be pretended that there was riot some proof of negligence, and if so then the verdict was not contrary to the charge.

[4.] The law, we apprehend, is this: there is, on the part of the-hirer of property, an implied obligation not only to use the thing, be it servant or horse, or any thing else, with due care and moderation, but also not to apply it to any other use than that for which it was hired. If a horse is hired as a saddle horse, the hirer has no right to use the horse in a cart, or to carry loads as-a beast of burden. So, if a carriage and horses are hired for a journey to Boston, the hirer has no right to go with them on a journey to New York. So, if horses are hired for a week, the hirer has no right to use them for a month. So, if a negro is hired to work on the streets of the City of Columbus, the City Council have no right to employ him in blasting wells, pulling down old walls, or levelling dangerous and precipitous embank *219 ments, although the work be within the limits of the streets, as delineated in the map of the town.

[5.] And it may be generally stated, that if the thing is used for a different purpose from that which was intended by the parties, or in a different manner, or for a longer period, the hirer is not only responsible for all damages, but if a loss occurs, although by inevitable casualty, he will generally be responsible therefor. Such misuse is deemed, at the Common Law, a conversion of the property, for which the hirer is generally held responsible to the letter, to the full extent of the loss. Story on Bailments, §413. 1 Cow. 322 . Jones on Bailments, 68. 2 Lord Raymond, 915. 12 Pick. 136 . 3 Pick. 492 . 5 Mass. R. 104 . 1 Const. Rep. S. C. 121.

[6.] The question has been much mooted, what degree of care or diligence is required of the hirer, while using the property for the purpose, and within the time for which it was hired. Sir William Jones considered that the contract being one of mutual benefit, the hirer was bound only for ordinary diligence, and of course was responsible only for such. Jones on Bailments, 86, 87, 120. And this opinion appears to be now settled, upon principle, to be the true exposition of the Common Law. 2 Kent Com. Lect. 40. 3 Cowp. Rep. 4. 13 Johns. 211 . 2 Brod. & Bing. 359. 7 Cowen R. 497. Gilpin, 579, 585, 586. He ought, therefore, to use the thing, and to take the same care in the preservation of it, which a good and prudent father of a family would take of his own. Hence the hirer of a thing, being responsible only for that degree of diligence which all prudent men use, that is, which the generality of mankind use, in keeping their own goods of the same kind, it is very clear he can be liable only for such injuries as are shown to come from an omission of that diligence; or, in other words, for ordinary negligence. If a man hires a horse, he is bound to ride it moderately, and to treat it as carefully as any man of common discretion would his own, and to supply it with suitable' food; and if he does so, and the horse, in such reasonable use, is lamed or injured, he is not responsible for any damages. Story on Bailments, 391, 392. 4 Barn, & Ald. 21. 3 Esp. R. 79. 5 Miller’s Louisia. R. 7, 9.

Now, test the verdict by either of these principles, and we are satisfied that it was warranted by the testimony. The Jury were authorized to find, that there was a special contract of hiring, and *220 that the death of the slave resulted from his being used for a different purpose from that intended by the parties, or else, that the loss ensued from gross negligence on the part of the Council. The want of discretion in our slave population is notorious. They need a higher degree of intelligence than their own, not only to direct their labor, but likewise to protect them from the consequences of their own improvidence. From the testimony of Toney, it is manifest that, considering the locality and nature of the soil, &c. the situation of the slave was one of imminent risk and exposure. We are, therefore, satisfied with the verdict.

Let the judgment be affirmed.