Hooks v. Smith , 18 Ala. 338 ( 1850 )

PARSONS, J.

This action was brought by Edward W. Smith, Anna Smith, and Mary Amanda Smith, the two latter, who were infants, by their next friend Edward W. Smith, against the plaintiff in error. The declaration contains three counts in case, and one in trover.

It appears that one Joseph A. Smith had been the regular guardian of all of the plaintiffs, and that he continued to be the guardian of the two last until after the suit was brought, and probably he is still their guardian. The defendant below filed three pleas in abatement, presenting the question whether the two plaintiffs, who were still infants, should not have sued by their guardian, instead of a next friend. There were demurrers to these pleas and the demurrers were sustained below, and the correctness of that is one of the questions in the record. The English law and the changes thereof may be stated thus — that at the common law infants were required to sue and defend by guardian. — Co. Lit. 135, b, note 220. That the law has not been altered as to this with respect to the manner of defending, that by the statute, Westm. 1, c. 48, infants were authorised to sue by prochein ami in an assize, and by Westm. 2, c. 15, in all other actions, which left it optional for them to sue by guardian or next friend, (Young v. Young, Cro. Ca. 86; Goodwin v. Moore, ib. 161,) but it was necessary that the guardian or prochein ami should be admitted by the court. Finally, however, it became sufficient if the count, in the case of a guardian, recited the fact of the admission, though there was no other record of it. — Rawlyn’s case, 4 Coke, 53. And in the course of time it became sufficient if the admittance of the prochein ami appeared by the count alone. — Archer v. Frowde, 1 Strange, 304, and see Miles v. Boyden, 3 Pick. 213. This brings us to our act of 1807, but it is to be remembered that, after the statutes in England, an infant might sue either by guardian or prochein ami. By the act of 1807, “in every case, where persqns who are within age may sue, their next friends shall be admitted to sue for them.” — Clay’s Dig. 336, § 130. We think, therefore, that an infant may, in every case, sue by his next friend, whether he have a guardian or not. It appears by the declaration that these infants sue by their next friend, Edward W. Smith, but it is not stated in either of the counts that he had been admitted by the court. That is not a question, however, which is raised by the pleas. They do not allege that the next friend was not admitted, but only that the suit should have been brought by the guardian, and not by the next friend. If the want of admittance had been objected, it would have been necessary for us to look into the case of Bethea v. McCall, pro. ami, 3 Ala. 449. We can see no error in sustaining the demurrer to the pleas in abatement.

2. There was a demurrer by defendant to the whole declaration, which was overruled. If the three first counts were bad, the count in trover was good, and it is clear that, as there was one good count, it was proper to overrule a demurrer to the entire declaration, there being no misjoinder of counts in this case.

3. It appears that Joseph A. Smith, as the then guardian of all the plaintiffs, in January 1847, hired a slave belonging to his wards to the defendant below, for that year, for house service exclusively, but that in July of the same year, he put her to work on his plantation, in which business, as she was crossing a creek on a log, she fell in and was drowned. There was evidence that the slave, who was a female, had become rogueish, ill natured and unmanageable. This, we think, was no excuse for putting her into the field, when he had expressly stipulated to employ her in the house or as house servant'only. But in the present case, we meet again with the question, whether the guardian, in his own name, or his wards, should have brought this suit. If it were an open question here, we would consider it, but it was settled by our predecessors in the case of Sutherland v. Goff, 5 Port. 508, and the decision then made has since been recognised in this court. It was held in Sutherland v. Goff, that a guardian cannot maintain assumpsit to recover the value of a slave, the property of the ward, who has been hired by such guardian to the defendant, and whose death is alleged to have been caused by the negligence of the hirer. There, it was held that as the matter lay in action, the ward must sue himself, although the contract, with its stipulations, was made with the guardian. In this case the matter lies more clearly in action, for the suit is founded on the tort. As the question, therefore, has been settled in this count, we decline opening it at this day on the ground of any doubts of our own, because we cannot see that the rights of the parties are to be injuriously affected by adhering in this case to what has been settled. N

4. The defendant below having hired the slave for house service, afterwards put her as a hand upon the plantation, and in that business she lost her life. For this he was clearly liable for her value. It is said by Judge Story that “ there is, on the part of the hirer, an implied obligation, not only to use the thing with due care and moderation, but also not to apply it to any other use than that for which it is hired,” and he adds, that if the thing is used for a different purpose than that which was intended by the parties, the hirer is responsible for all damages, and if a loss afterwards occurs, although by inevitable casualty, lie will generally be responsible therefor. — Story on Bailments, § 413; Homer v. Thwing, et al., 3 Pick. 492; Wheelock v. Wheelright, 5 Mass. 104; Spencer v. Pilcher, 8 Leigh, 565; Horsely v. Branch, 1 Humph. 199. The cases' cited show that if the thing hired be applied to a use for which it was not hired, and a loss occur, the hirer is responsible and trover is maintainable, because it is a conversion. It was held in the case last cited, that where a slave is hired for twelve months and converted by the hirer before the twelve months expired, the owner has a right of action in trover instantly upon the conversion, and need not wait until the expiration of the twelve months, otherwise when the conversion is by a third person. This is not a case in which the plaintiffs had no right of possession at the time of the conversion, and could not, therefore, bring trover; for when the defendant below violated his contract by applying the slave to a use for which he had not hired her, the case is as if there had been no contract. It would have been' different if a third person had converted her. This action was brought after the term of the hiring had expired, but that is not material. It is not necessary to consider the three counts in case.

5. It appears by the bill of exceptions that “ the plaintiffs introduced a witness to prove the terms upon which the negro mentioned in the declaration, had been hired to the defendant— the witness stated that the contract was evidenced by a promissory note made by the defendant at the time of hiring, by which note the defendant agreed to pay the guardian of the plaintiffs a certain sum of money, and to observe the conditions of hire— to observe the conditions of hire being the expression used in the note. This not being produced or its absence accounted for, the defendant moved the court to exclude from the jury the testimony of said witness going to show by parol what the contract of hiring really was, and what were its terms and conditions as agreed to by the defendant, but this motion was overruled by the court and the defendant excepted.” It is our understanding of the bill of exceptions that the note contained the entire contract of hiring, and of course, all its terms and conditions. The witness stated that the contract was evidenced by a promissory note. We understand him to mean the whole contract of the defendant, and therefore, we think, the note should have been prodnced or its absence accounted for. If, contrary to what appears, the note did not contain the conditions of the hiring, the question of the admissibility of verbal testimony to prove them may arise in the case, but we will not decide it in advance, merely on a conjecture that it may have been so. There was error in admitting parol evidence of the contract, and for this the judgment is reversed and the cause remanded. We see no other error in the record.