Crockett v. Calvert

• Decision Date: 27 November 1856
• Citation: 8 Ind. 118
• Parties: Crockett v. Calvert
• Court: Indiana Supreme Court

8 Ind. 118

Crockett v. Calvert

Supreme Court of Indiana

November 27, 1856

From the St. Joseph Circuit Court.

The judgment on the verdict in the Circuit Court is affirmed; but as to the costs, reversed; and the Circuit Court is directed to render a judgment for costs for the defendant.

A. G Deavitt, for appellant.

J. A Liston and J. W. Gordon, for appellee.

OPINION

Stuart J.

Calvert sued Crockett before a justice of the peace for injuring his horse. The complaint alleges that Crockett was the owner of a team and lumber wagon, which he knowingly and negligently permitted his servant to drive about the streets and highways with insufficient harness, in consequence of which Crockett's horses ran away with the wagon, and in their progress ran against Calvert's horse of the value of 100 dollars, and so injured him that he died--claiming damages to the value of the horse.

The cause was submitted to a jury. Verdict in favor of Calvert for 100 dollars, and judgment accordingly. After the rendition of judgment, and above and before the justice's official signature and seal, is a remittitur of "25 dollars of the above judgment."

Crockett appealed to the Circuit Court. There the case was again submitted to a jury. Verdict and judgment for Calvert for 80 dollars. At the proper time a motion for a new trial was interposed and overruled. Crockett appeals to this Court, setting out the evidence.

We will briefly notice the several points made in error.

1. It is urged that the suit is brought against the wrong party. It appears that one Loomis had hired the team and teamster for that day on which the accident happened. It is said the driver was the servant of Loomis, and that he and not Crockett was liable; and 40 Engl. C. L. R. 192, and 35 id. 342 are cited.

It is sufficient to say that these cases are not in point. The principal question in this case is one of fact, unencumbered by any instructions of the Court, viz., whether the relation of master and servant did, at, etc., exist between Crockett and the driver of the team. The jury specially find that the team and driver were in the employ of Crockett at the time of the accident; and we think correctly.

The defect of the harness was in the reins, which gave way in several places in attempting to control the horses. It is very clear that when Loomis hired the team to haul manure for the day, it was to be a team properly equipped for that purpose. Surely it could not be the duty of Loomis to pay the hire and provide for their proper equipment besides. That duty devolved on Crockett the bailor: the motive power was owned, furnished, and controlled by Crockett, the driver was his servant and not the servant of Loomis. In such case the bailor is the party liable and not the bailee. Story on Agency, ss. 452, 453. In the case of Laugher v. Forister, 5 B. & C. 578, the owner of a carriage hired a team and driver, through whose careless driving the horse of the plaintiff was injured. The Court of King's Bench was equally divided whether the owner of the carriage or the bailor of the horses and driver was liable. But the liability of the latter is now well settled. 6 M. & W. 499 et infra. Crockett, the owner of both team and wagon controlled by his servant, is, therefore, clearly the party liable.

2. The second point made here is that the jury were required in the Circuit Court to find a special verdict, which they failed to do. It is a sufficient answer to say that no such requirement appears in the record. Nor was this objection made in the Court below. Besides the verdict is special as to the relation of master and servant. As the record stands, we must, if we presume at all, presume that the Court directed the jury to find a special verdict on that point alone. 2 R. S. p. 114, s. 336.

3. The third objection urged, relates to the costs. It is insisted that the judgment before the justice being reduced, the appellant, Crockett, was entitled to costs. Such is the statute, 2 R. S. p. 464, s. 70, if it be admitted, as assumed, that the judgment was reduced 5 dollars. Was it so reduced? is the question.

The judgment was in terms for 100 dollars. Before it was signed, but after it was entered by the justice the plaintiff remitted 25 dollars. The recovery in the Circuit Court was 80 dollars. Was this reducing the judgment, rendered in the Court below, 5 dollars. We think it was, taking as our guide the plain language of the statute. The statute reads: "If either party against whom judgment has been rendered, appeal and reduce the judgment against him 5 dollars or more, he shall recover costs." 2 R. S. p. 464, s. 70. Here the judgment was rendered for 100 dollars; for the remittitur is "of the above judgment." To have brought himself within the statute, Calvert should have remitted 25 dollars of the verdict, and let judgment be rendered for the residue. ^[1]

If this construction be thought strict, it should be remembered that the point is pressed upon the Court; and in deciding it we are not deducing the best rule from conflicting adjudications; nor are we bound to show that statutory provisions are, in each instance, the very best that could be devised. We are simply giving construction to a statute, according to the rules which the statute...