In reply to the above request for informa- | tion, sent by the jury, the attorneys on both sides consent and agree that the following statement and figures shall be furnished to the jury by the court: The attorneys for the plaintiff claim that the checks and notes paid by the bank amounted to $26,841.28. The same attorneys claim that the total deposits amounted to $25,383.85, and that there were no other deposits made by Rhoades. jury to the animal occasioned by driving a farther distance; but if the horse is desired for a man is supposed to know the ability of his horse trip with only a general destination, the liveryto stand the trip, and if it is injured from natural causes the hirer is not liable. [Ed. Note.-For other cases, see Livery Stable Keepers, Cent. Dig. § 13; Dec. Dig. § 12.*1 Action by Harley J. Conaway against James P. Dukes. Verdict for plaintiff. Argued before CONRAD and WOOLLEY, JJ. John M. Richardson and Robert G. Hous According to this claim the alleged over-ton, both of Georgetown, for plaintiff. Robdraft is $1,457.43. The attorneys for the defendant admit that the said checks and notes amounted to $26, 841.28. The same attorneys claim that more deposits were made than the books show, and that in fact the deposits amounted to more than the checks and notes. There is, however, no dispute as to the addition of the deposits shown in the books, and if the jury does not believe there were any deposits made by Rhoades other than those appearing in the books they need not go to the trouble of minute examination and addition of amounts. The above statement was signed by the spective attorneys on both sides. The jury disagreed. Feb. 1. NEGLIGENCE (§ 121*)—EVIDENCE-PRESUMP TIONS. ert C. White, James M. Tunnell, Charles W. Cullen, Daniel J. Layton, Jr., and Andrew J. Lynch, all of Georgetown, for defendant. Summons case (No. 12, April term, 1913) brought by the plaintiff, a liveryman of Georgetown, to recover for the loss of a mare, hired by the plaintiff to the defendant, sheriff of the county, and driven by the latter's deputy; it being alleged that the mare was driven so much further than she was hired to be driven, and that the defendant's agent from exhaustion a short time after being re-. took so little care of the mare, that she died turned to the plaintiff's stable in Georgetown. The defendant contended that he had a re-contract with plaintiff for the bire of teams to drive indefinite distances, for the price paid for the hire of the mare upon the occasion in question, that he hired the mare from the plaintiff to drive "somewhere in the neighborhood of Seaford, Del."; that he found it necessary to drive 71⁄2 miles beyond Seaford, and paid plaintiff the stipulated price for such a trip; that the roads were heavy in some places and good in others; that his agent drove the mare at a moderate gait and that he watered, but did not feed, the mare, as the plaintiff told him that it was not necessary to feed her; that the mare was sluggish on the trip and early developed SCours; that her death was not due to any abuse or neglect on his deputy's part, but was caused by plaintiff causing to be administered to the mare, while she was suf fering from congestion of the lungs, a drug known as arecoline. Negligence is never presumed, and when it is the basis of recovery, it must always be proven by the person seeking the recovery. [Ed. Note. For other cases, see Negligence, Cent. Dig. 88 217-220, 224-228, 271; Dec. Dig. 121.*] 2. LIVERY STABLE KEEPERS (§ 12*)-ACTION FOR INJURY TO HORSE. In an action by a liveryman for the death of a horse claimed to have been killed by the hirer's negligence, the liveryman has the burden of establishing by the preponderance of the evidence the negligence complained of, and that it was the proximate cause of the death of the horse. [Ed. Note.-For other cases, see Livery Stable Keepers, Cent. Dig. § 13; Dec. Dig. § 12.*] 3. LIVERY STABLE KEEPERS (§ 12*)-HIRE OF HORSE-DUTY OF HIRER. One who hires a horse is without special contract bound to use and treat the horse with such care and consideration as a reasonably prudent man would use toward his own horse under like circumstances, having regard to the known and apparent condition of the animal, the character of the weather, the conditions of the road, and the distance. [Ed. Note. For other cases, see Livery Stable Keepers, Cent. Dig. § 13; Dec. Dig. § 12.*] 4. LIVERY STABLE KEEPERS (§ 12*)-LIABILITY FOR HIRE OF HORSE. When the hirer of a horse agrees upon the distance to be traveled, he is liable for any in Gen WOOLLEY, J. (charging the jury). tlemen of the jury: This is not an action upon a contract of bailment for hire, as the evidence of a contract between the parties to this action would seem to indicate, but it is an action declared upon and pleaded to in case, whereby the plaintiff seeks to recover damages for the loss of his mare which he alleges was occasioned by the negligent acts of the defendant's servant, first, in wrongfully and injuriously driving the mare a greater distance than she should have been driven, second, in driving her unreasonably and immoderately, and third, in failing to give the mare reasonable and proper care and attention. The defendant in support of his plea of not guilty, denies the acts of negligence attributed to his servant, and charges that the plaintiff suffered the loss of his mare by the negligent act of the plaintiff's own servant in administering to the mare a drug that was fatal to her when administered in her condition. It thus appears that as this case is brought and pleaded, the gist of the action is negligence, the question for your determination being whether in this case negligence existed and if so to whom is it chargeable. [1, 2] Negligence is never presumed, it must always be proved; and when it be the basis of recovery, it must be proved by the one seeking to recover therefor. If in this case you find that the plaintiff lost his mare through the negligence of any one, the plaintiff can recover only when he proves to you by a preponderance of the evidence, that such negligence was the negligence of the defendant, through his agent, and that such negligence was the proximate cause of the death of the mare, without negligence on the part of the plaintiff or of his agent, entering into or contributing to it. [3] One who hires a horse from another, owes a duty to the owner, without a special contract to that end, to use and treat the horse with such care and consideration as a reasonably prudent man would use and treat his own horse under like circumstances, regard being given to the known or apparent condition of the animal, the character of the weather and the condition of the roads, and the distance traveled and to be traveled. The maximum of care in the use and treatment of a hired horse is not demanded of one hiring a horse, as the law requires a man to take only such care, and just such care, of a thing hired, as he would take of a thing he owned, there being upon him the legal duty simply to treat and use it in such manner, as a man of ordinary prudence and discretion would treat and use his own property. Early v. Wilson, 2 Har. 47. If in this case it appears by the evidence, that the driver of the mare, who is admitted to be the defendant's agent and whose acts therefore become the acts of the defendant himself, abused, misused or neglected the mare in all or in any one of the several ways alleged, whereby and by reason whereof, the mare suffered the injuries from which she died, whether such injuries resulted while she was traveling a distance agreed upon or while traveling a distance greater than that agreed upon, your verdict should be for the plaintiff. [4] With regard to the controversy between the parties to this action respecting the distance for which the mare was hired to travel, we say to you, that if you find that the defendant contracted with the plaintiff to hire the mare for a trip limited from Georgetown to Seaford, and in fact the defendant's agent drove the mare a further distance, and if you also find that the extra driving of the mare for the extra distance was the cause of the alleged injury to and subsequent death of the mare, your verdict should be for the plaintiff. On the other hand, one who hires to another a horse to travel a given distance, or to make a trip with a general destination, without the precise distance being known, is presumed to know the condition of the horse to travel and withstand the fatigue of such a trip, and he assumes the risk of injury to and loss of his horse from natural and normal causes occurring or arising during the time the distance is being traveled: and if injury to his horse occurs from such causes, and not from abuse, misuse or neglect by the one who drives the horse, the owner cannot recover his loss, in an action at law, from the one to whom the horse is hired. Therefore, in this case, if the mare died from any ailment, or because of any treatment for any ailment, or from any cause other than from an ailment, or a cause arising from the alleged neglect and misuse of her by the defendant's agent, the plaintiff cannot recover, and your verdict should be for the defendant. Should you find for the plaintiff, your verdict should be for such an amount as, under the testimony in this case, will recompense him for the loss of the mare. Verdict for plaintiff. ING. In an action for goods sold, the incorporation of the order for the goods in the declaration and making it a part thereof, without filing it or appending it to the declaration, was not a "filing," within Rev. Code 1852, amended to 1893, p. 791, c. 106, § 5, providing that in any action upon an instrument in writing, a copy of which is filed with the declaration, etc., the execution of such instrument shall be taken as admitted, unless defendant files an affidavit denying the signature when filing his plea. [Ed. Note. For other cases, see Pleading, Cent. Dig. 88 864, 865, 866-879; Dec. Dig. 291.* For other definitions, see Words and Phrases, vol. 3, p. 2771.] PENNEWILL, C. J. (delivering the opinion of the court). In this case the plaintiffs have sued for the sum of $94.88, which is alleged to be the price or value of certain goods claimed to have been ordered by the defendant, delivered to a railroad company in Iowa, and consigned to the defendant in Smyrna, Del. The plaintiffs also claim that the goods were sold and shipped in pursuance of a written order signed by the defendant, which order constitutes their cause of action and is the instrument sued upon in this case. Instead of filing the order with their declaration, or appending it thereto, the plaintiffs embodied it in, and made it a part of, their declaration, as follows: "For that whereas, heretofore, to wit, on the 13th day of November, 1912, at the town of Smyrna aforesaid, the said defendant, by 2. PLEADING (§ 291*)-VERIFICATION-EXECU- a certain order then and there made in writTION OF WRITTEN INSTRUMENT. Under Rev. Code 1852, amended to 1893, p. 791, c. 106, § 5, providing that in any action upon an instrument in writing, a copy of which shall have been filed with the declaration, the execution thereof is admitted, unless defendant files with his plea an affidavit denying the signature, defendant is not required to file such affidavit, unless plaintiff has filed with his narr. a copy of the instrument. [Ed. Note.-For other cases, see Pleading, Cent. Dig. 88 864, 865, 8662-879; Dec. Dig. § 291.*] 3. PLEADING (§ 291*) - VERIFICATION STRUMENT OF WRITING." - ing under her hand, bargained with the said plaintiffs for the sale and delivery of the goods listed and mentioned in said order, as aforesaid, upon the terms stipulated in said order as aforesaid; and the said plaintiffs, at the special instance and request of the said defendant then and there made, afterwards, to wit, on the 4th day of December, 1912, in Kent county aforesaid, approved of said order and then and there sold and de"IN-livered to the said defendant the goods listed and mentioned in said order as aforesaid, according to the terms, stipulations and directions mentioned in said order. And the said goods having been sold and delivered as aforesaid, the defendant did not pay the price of the same according to the terms stipulated in the defendant's order as aforesaid, and thereupon, 30 days from the date of said invoice, according to the terms stipulated in said order, she, the said defendant became and was indebted to the said plaintiffs," etc. In an action for goods sold and delivered, the order for the goods, though one of the steps in the proof of plaintiff's case, was not an "instrument of writing," within Rev. Code 1852, amended to 1893, p. 791, c. 106, § 5, providing that in any action upon any deed, etc., "or other instrument of writing," the execution of same shall be taken as admitted, unless defendant files with his plea an affidavit denying such execution. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 864, 865, 8662-879; Dec. Dig. § 291.* For other definitions, see Words and Phrases, vol. 4, p. 3668.] Action by Milbert F. Price and Louis E. Lyons, trading under the firm name and style of the Franklin Price Company, against Laura L. Cloud. Verdict for defendant. Summons case (No. 9, April term, 1913) to recover the price for goods sold and delivered upon the alleged written order of the de fendant. The order was embodied in and made part of the declaration, but was not otherwise filed. At the trial, objection was made by defendant to the introduction of the order without proof of its execution. The facts and contentions appear in the opinion of the court. Argued before PENNEWILL, C. J., and BOYCE and RICE, JJ. Charles H. Le Fevre, of Dover, for plaintiffs. Levin Irving Handy, of Wilmington, for defendant. [1] The defendant contends that the incorporation of the order in the declaration in the manner stated, and making it a part thereof, was not a filing within the meaning of the statute, Rev. Code 1852, amended to 1893, p. 791, c. 106, section 5 of which reads as follows: "In any action brought upon any deed, bond, bill, note or other instrument of writing, a copy of which shall have been filed with the declaration, the defendant not being an executor or administrator, shall not, on the trial be allowed to deny his signature or that of any other party to the instrument, and the execution of such instrument shall be taken to be admitted, unless the defendant shall have filed an affidavit, denying the signature, at the time of filing his plea, or within such further time as the court shall, on motion allow." The defendant further contends that if the incorporation of the order in the declaration was a "filing" within the meaning of the statute, it is not an instrument of writing upon which the present action was brought, within the contemplation of said act. The testimony for the plaintiffs consists mainly of depositions; the said order was made a material part of the deposition of one of their witnesses, and a copy thereof appended to and made a part of his testimony. The manifest purpose of the statute referred to was to facilitate the trial of causes by relieving the plaintiffs of the necessity, or difficulty, of proving the execution of the instrument sued on. [3] And besides, this action is brought for goods sold and delivered, and not upon the order in question. The order is no doubt one of the steps or links in the proof of the plaintiff's case, but it is not "an instrument of writing" upon which the present action was brought. PENNEWILL, C. J. (charging the jury). Gentlemen of the jury: This is an action brought by the plaintiff against the defendant to recover the sum of $94.88, claimed to If the signature to the instrument sued up- be due and owing from the defendant for on, and a copy of which is appended to the goods sold and delivered by the plaintiff to narr., be not in fact the signature of the de- the defendant. The issue in this case is sinfendant, then he should file with his plea angle and very simple. It is this, whether the affidavit denying his signature. Woolley on defendant did or did not order the goods in question. Delaware Practice, vol. 1, § 371. It is not denied that the goods [2] But the defendant is not required to do were delivered to the railroad company in this unless the plaintiff has filed with his Iowa and sent to the defendant in Smyrna. narr. a copy of the instrument sued upon, It is not denied that they arrived at Smyrna. and this we think the plaintiff has not done But the defendant refused to receive them in the present case. We are of the opinion on the ground that she had not ordered them. that making the order a part of the declara-So it all comes back to the simple question, tion was not a filing within the meaning of the law. The act of the plaintiff must be of such a nature as to clearly inform the defendant that the paper was filed with the declaration, otherwise he would not think it necessary to file with his plea an affidavit denying his signature, and in many cases would be prevented, without any fault on his part, from making a good defense. did the defendant order the goods, that is, did she sign the order in question in this case? If you believe from the preponderance of the testimony that she did sign the order, your verdict should be for the plaintiff for the amount of the claim, $94.88. Otherwise your verdict should be for the defendant. Verdict for defendant. PER CURIAM. We think the justice of DEVANEY V. AMERICAN ELECTRICAL the superior court erred in sustaining the demurrers to the several counts of the declaration. WORKS. (No. 4658.) (Supreme Court of Rhode Island. May 6, 1914.) 1. MASTER AND SERVANT (§ 258*)-INJURY TO SERVANT-DECLARATION-SUFFICIENCY. A declaration, in an action for injuries to an employé caused by coils of wire which impeded him and prevented him from safely attending to his work, which alleges that the placing of the coils was done by a teamster in obedience to the orders of a foreman, and which sets forth the duty of the employer to provide a safe place to work, and that the obstructed condition was well known to the employer and unknown to the employé, states a cause of action as against a demurrer without particularly alleging the length of time of the existence of the obstruction. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 816-836; Dec. Dig. § 258.*] [1, 2] In sustaining the demurrer to the first count, the court assumed that the obstruction of the floor, where the plaintiff worked, by placing coils of wire in such position as to impede the plaintiff and prevent him from safely attending to his work, was the act of a fellow servant; but the declaration alleges that the placing of these coils of wire was done by a teamster in obedience to the orders of a foreman. We cannot assume from this language, taken in connection with the rest of the count, alleging the ignorance of such obstruction by the plaintiff, and the knowledge or means of knowledge thereof on the part of the defendant, 2. MASTER AND SERVANT (§§ 260, 261*)-IN- that the act of obstructing the floor and JURY TO SERVANT-CONTRIBUTORY NEGLI-causing injury to the plaintiff was not a vioGENCE ASSUMPTION OF RISK-PLEADINGS. lation of the duty to provide a safe place to A declaration, in an action for injuries to work as set forth in this count; nor can we an employé, which alleges that he exercised due care and was ignorant of an obstruction pre- assume that the act of the foreman in orventing him from safely attending to his work, dering the bundles of wire to be so placed which obstruction caused the injury complained was the act of a fellow servant and was not of, is not demurrable on the ground that it charges him with contributory negligence and a violation of the nondelegable duty of the assumption of risk. defendant to furnish to the plaintiff a safe place to work in view of the nature of the work which it was his duty to perform. Nor is it to be assumed that the plaintiff knew or should have known of the obstruction, so as to be charged either with the assumption of risk or with contributory negligence, in view of the allegations, in this count contained, of due care on the part of the plaintiff and of ignorance of the obstruction whereby the occasion for the injury to him arose. Nor is it important, in view of the other allegations of the count, that an allegation of the length [Ed. Note.-For other cases, see Master and of time during which the obstruction was alServant, Cent. Dig. §§ 849-854; Dec. Dig. 8lowed to exist is not definitely made. 261.*] [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 844-854; Dec. Dig. $$ 260, 261.*] 3. MASTER AND SERVANT (§ 261*)-INJURY TO SERVANT-CONTRIBUTORY NEGLIGENCE PLEADINGS. A declaration, in an action for injuries to an employé caused by obstructions preventing him from safely attending to his work, which alleges insufficient lighting and knowledge thereof on the part of the employer, and lack of knowledge on the part of the employé, and which avers that the employé acted with due care, is not demurrable on the ground that it shows contributory negligence. [3] As to the second count, alleging insufficient lighting as the ground of negligence, together with the usual allegations of knowledge of that condition on the part of the defendant and lack of knowledge on the part of the plaintiff, and that the plaintiff was acting with due care, we do not find in this count any such allegations as to warrant the conclusion of the superior court that the plaintiff was to be deemed guilty of contributory negligence. Under this count it might be shown that the lighting was sufficient under ordinary conditions to permit the plaintiff to do his ordinary work safely, so that he would not have any notice or reason to believe that he would be in danger under the conditions which did arise, which he was unable to foresee, but of which the defendant had full knowledge. [4] As to the third count, alleging negligence of the defendant in not guarding the wires, it was not necessary for the plaintiff to set forth any particular mechanical device or method whereby the wires could be guard *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |