Conner v. Winton
| Decision Date | 09 December 1856 |
| Citation | 8 Ind. 289 |
| Parties | Conner v. Winton |
| Court | Indiana Supreme Court |
From the Wabash Circuit Court.
The judgment is reversed with costs. Cause remanded.
H. P Biddle, for appellant.
Conner sued Winton for unskillfully doctoring a horse. The complaint contains two counts alleging in substance that Conner was the owner of a horse worth 175 dollars, which had a swelling on the hock joint; that Winton represented that he could relieve the horse by lancing; that he accordingly lanced the diseased limb, but so ignorantly and unskillfully as for ever to disable the horse and render him worthless. It is further alleged that Conner was put to 25 dollars expense. Damages laid at 200 dollars.
Winton answers, denying generally the allegations in the complaint and also denying in separate paragraphs the several material matters alleged, averring that the lancing was done at the instance, and with the approbation, of Conner.
Jury trial and verdict in these words: "We the jury find for the plaintiff one cent, and costs to the defendant."
Subsequently Peter King, one of the jury, filed an affidavit stating in substance that these words did not fully express the meaning of the verdict--the jury intending that the defendant should pay costs. On this affidavit the plaintiff moved the Court for a new trial which was overruled. This ruling is assigned as error. But the Court below was clearly correct. The words of the verdict are not ambiguous: they need no explanation. "Costs to the defendant," taken in connection with the context, can mean nothing else than that the defendant recover costs. The Court properly regarded these words as surplusage, and rendered a judgment for one cent damages and a like sum in costs, and that the defendant recover as to the residue of the costs. 2 R. S. p. 127. The plaintiff could recover no more costs than damages, and of course, the verdict being one cent, the law, and not the jury, determined the question of costs. Besides we do not see anything in this case to exempt it from the well settled rule that the affidavit of a juror cannot be heard to impeach his own verdict. Barlow v. State, 2 Blackf. 114; Clum v. Smith, 5 Hill 560.
It is contended that this is a case arising ex contractu and not ex delicto, and hence, that the Court erred in giving the defendant costs. If this were true, still the plaintiff not having recovered 50 dollars would be liable to costs. 2 R. S. 126, s. 397, and note; Clark v Wildridge, 5 Ind. 176; Foglesong v. Moon, 5 Ind. 545; Higman v. Brown, 3 Ind. 430. But the more approved form of instituting such an action under the old practice would have been in case. One ground of liability against Winton might be that he was, or assumed to be a farrier. For negligence in that capacity, and when the damages were not immediate but consequential, case would be the better form, though assumpsit might also be sustained. 1 Chit. Pl. 134. And in this view of the case the judgment in favor of the defendant for costs would also be right.
The following instruction to the jury is excepted to by the plaintiff:
"If Winton pretended to no skill as a farrier, or was not known to Conner as such, but as a matter of friendship or otherwise, recommended the making of the puncture, and the same was assented to by Conner, and the puncture was accordingly made, Dr. Winton is not liable, even though the horse died in consequence of the puncture so made."
The general rule in relation to bailment is, that where the contract is of mutual benefit, as where the work is done for hire, there, ordinary diligence only is required. Here, there is no special contract to that effect set up. So that none of the received doctrines in relation to care, skill, etc combined are applicable. The instruction assumes that the lancing was done without hire "as a matter of friendship or otherwise," and hence, its correctness must be tested by the rules applicable to...
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