Boswell v. Gates

• Decision Date: 23 April 1881
• Citation: 8 N.W. 809,56 Iowa 143
• Court: Iowa Supreme Court
• Parties: BOSWELL & TOBIN v. GATES AND OTHERS.

56 Iowa 143

8 N.W. 809

BOSWELL & TOBIN

v.GATES AND OTHERS.

Supreme Court of Iowa.

Filed April 23, 1881.

Appeal from Palo Alto circuit court.

This action was brought before a justice of the peace. The plaintiffs aver that they are livery-stable keepers; that as such they furnished to the defendant L. S. Gates and wife a team of horses to drive before a buggy to another county; that by reason of their careless and improper driving and treatment of the horses one of them was injured. They bring this action to recover damages in the sum of $80. There was a trial by jury, and verdict against the defendant L. S. Gates alone. Before judgment, the defendant L. S. Gates moved to dismiss the action, on the ground that a joint tort was averred and not proven. The motion was overruled, and thereupon the defendant L. S. Gates, to test the correctness of the ruling, sued out from the circuit court a writ of error, and the ruling was by the circuit court reversed. The plaintiffs appeal.George H. Carr, for appellants.

T. W. Harrison, for appellee.

ADAMS, C. J.

The question certified is in these words: “In a joint action of tort against two defendants, where the jury find in favor of one and against the other, is the plaintiff entitled to judgment against the one against whom the verdict was rendered?” The defendant insists that this question must be answered in the negative. He relies upon Cogswell v. Murphy, 46 Iowa, 44, and Barnes & Son v. Ennenga, 53 Iowa, 497. The former was an action brought against three defendants jointly for trespass and damage caused by their cattle. Against the defendants separate judgments were rendered, on the ground that each was liable for a separate tort. It was held that this was error; Mr. Justice Seevers, in rendering the opinion, saying that the plaintiff was entitled to a joint judgment or nothing. But the principle involved in that case is different from that involved in this. The court could not properly render separate judgments against the defendants for separate torts committed by each; nor was it for the court to make an election of one of the defendants and render a judgment against him. In the case at bar there was but one tort, and the only objection to the rendition of judgment against L. S. Gates is that it is averred that the tort was committed jointly by him and his wife, who is made co-defendant with him, which averment, so far as the joint character of the tort was concerned, was not proven.

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