Cumberland Tel. & Tel. Co. v. Taylor

• Decision Date: 02 June 1909
• Docket Number: No. 6,780.,6,780.
• Citation: Cumberland Tel. & Tel. Co. v. Taylor, 44 Ind.App. 27, 88 N.E. 631 (Ind. App. 1909)
• Parties: CUMBERLAND TELEPHONE & TELEGRAPH CO. v. TAYLOR.
• Court: Indiana Appellate Court

44 Ind.App. 27

88 N.E. 631

CUMBERLAND TELEPHONE & TELEGRAPH CO.

v.TAYLOR.

No. 6,780.

Appellate Court of Indiana, Division No. 2.

June 2, 1909.

Appeal from Circuit Court, Floyd County; William C. Utz, Judge.

Action by Charles Taylor against the Cumberland Telephone & Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

C. L. & H. E. Jewett and Wm. L. Granbery, for appellant. Stotsenburg & Weathers, for appellee.

COMSTOCK, J.

Appellee, plaintiff below, sued the appellant to recover damages for alleged conversion of a horse and for injuries alleged to have been received by said horse while in possession of said company under contract of hiring. The amended complaint was in three paragraphs, and the substance of each is as follows: The first paragraph alleges that on the 8th day of August, 1906, Taylor was the owner and entitled to immediate possession of a horse worth $175; that on said day the defendant, being in the possession of the horse, converted and disposed of the same to its own use, to Taylor's damage $175. The second alleges that on the 8th day of August Taylor was the owner of a horse worth $175; that the telephone company on said day hired the horse from Taylor to be used in its business at Lanesville, Ind., and agreed to pay 75 cents per day hire; that the telephone company so immoderately, improperly, negligently, and carelessly used such horse and neglected to care for the same that on the 20th day of August it was injured and rendered worthless, to Taylor's damage in the sum of $175. The third contains the same allegations as the second with reference to the ownership, value, and hiring of the horse and the compensation to be paid per day, the manner in which the horse became sick, and, in addition, that the telephone company placed the horse in the keeping of one Day, a liveryman, and permitted it there to remain, and upon demand refused to pay the claim of Day, that the horse was now only of the value of $25, and the liveryman's bill amounts to $50, whereby the horse was lost to Taylor. The appellant answered amended complaint by general denial and special plea of settlement and payment which was denied by appellee. The case was tried by jury and judgment for $175 rendered in favor of appellee. Appellant's motion for a new trial was overruled. This action of the court is relied upon for reversal.

The grounds for a new trial upon which appellant relies are the sufficiency of the evidence to sustain the verdict; the refusal of the court to give appellant's instruction No. 2; and the giving of appellee's instructions Nos. 7 and 10. Said second instruction was a peremptory instruction to return a verdict in favor of defendant upon the first paragraph of complaint. Instructions Nos. 7 and 10 read as follows: No. 7: “If the defendant hired of the plaintiff the horse described in the complaint, and under the contract mentioned in the complaint, it would be the duty of the defendant when through with said horse to return it to the plaintiff at the stable of the plaintiff in Georgetown, Ind., unless it was agreed between the parties that said horse was to be surrendered at some other place.” No. 10: “If the defendant obtained the possession of the horse described in the complaint under the contract of hiring therein described, and such contract was for no certain time, and the defendant refused and neglected to redeliver said horse to the plaintiff on demand, and the plaintiff thereby was deprived of said horse, then such facts would be evidence that the defendant converted such horse to its own use.”

The questions thus raised make it proper to set out a summary of the evidence. On the 6th day of August, 1906, the appellee owned the horse in question, which was 3 1/2 years old, sound in every particular, and worth $175 to $200. On said date the appellant through its foreman, one Carl Darbo, at Georgetown, Ind., where appellee lived and where his horse was kept, hired it of the appellee for use in appellant's business. On Monday, August 6, 1906, the horse was sound and uninjured, and on that day was used in the work along the line and at night he was driven to Lanesville, where board was engaged for the men at the hotel of one Albert Day. In connection with the hotel, Day ran a livery barn and feed stable, and the team was put in his barn, where it was fed and cared for by Day at appellant's expense. On Tuesday morning the horse was lame. Darbo said he had strained himself, and made no examination, but worked the horse all that day. On Tuesday night the horse was still lame, and on Wednesday morning he was worse. Tuesday night or Wednesday morning Darbo telephoned the appellee the horse was lame, and the appellee instructed Darbo if the horse was lame not to work him. Wednesday morning Keithley told Darbo that the horse ought not to be worked. Darbo replied it did not amount to anything, for the men to load up. The horse was worked all day Wednesday, and at night he was worse. On Thursday morning the horse was still lame, but Darbo ordered the men and tools to be hauled over a rocky road five miles to Georgetown. While at Georgetown the appellee saw the horse and that he was lame. He told Darbo again if the horse was lame not to work him. Afterwards, in the afternoon, Darbo drove the horse back to Lanesville. On Thursday night the horse's leg was very much swollen. Keithley then called up the appellee, and told him about the condition of the horse, and the appellee told him not to work the horse the next day. Keithley reported to Darbo that the appellee did not want the horse worked any more. On Friday and Saturday Darbo ordered the horse to be worked, and he was worked up to Saturday night. On Wednesday Keithley examined the horse's leg, and found a hole in the right hind leg at the hock joint. It appeared as if it had been pierced with a wire. On Wednesday a Mr. Minton, also an employé of the appellant, under Darbo's direction, drove the horse to Georgetown for a load of wire. The horse got worse during the week, and the appellant did nothing to treat him. The horse limped all the time. On Saturday night Darbo called Taylor up, and told him he had better bring a veterinary surgeon over to Lanesville to see the horse. Early the next week the...