Daugherty v. Reveal

• Decision Date: 27 June 1913
• Docket Number: 8,051
• Citation: 102 N.E. 381,54 Ind.App. 71
• Parties: DAUGHERTY v. REVEAL
• Court: Indiana Appellate Court

102 N.E. 381

54 Ind.App. 71

DAUGHERTY v. REVEAL

No. 8,051

Court of Appeals of Indiana

June 27, 1913

From Boone Circuit Court; Willett H. Parr, Judge.

Action by Lewis M. Daugherty against Clyde Reveal. From a judgment for defendant, the plaintiff appeals.

Affirmed.

R. P Bundy, for appellant.

A. J Shelby, for appellee.

FELT J. Adams, C. J., Hottel, P. J., Lairy, Ibach and Shea, JJ., concur.

OPINION

FELT, J.

This suit was brought by appellant against appellee to recover damages for the death of a horse and the destruction of a buggy. At the close of plaintiff's evidence the defendant moved the court to instruct the jury to find for the defendant, because: (1) the evidence wholly fails to show any liability against the defendant, and (2) the evidence shows that the defendant is a minor under the age of twenty-one years and that no guardian ad litem has been appointed for him. The court sustained the motion and the jury returned a verdict accordingly. Appellant moved for a new trial on the ground that the verdict is not sustained by sufficient evidence and is contrary to law; newly-discovered evidence; and error in instructing the jury to find for the defendant.

Appellee insists that the evidence is not properly in the record, because it is not shown by the certificate of either the judge, clerk or reporter to contain all the evidence given in the cause. The certificate of the shorthand reporter is not an essential and does not determine the sufficiency of a bill of exceptions. It is a judicial act and is determined by the trial judge. McCormick, etc., Mach. Co. v. Gray (1887), 114 Ind. 340, 344, 16 N.E. 787; Adams v. State (1901), 156 Ind. 596, 603, 59 N.E. 24; Gray v. Taylor (1891), 2 Ind.App. 155, 158, 28 N.E. 220. At the close of the bill of exceptions and preceding the certificate of the trial judge it is stated: "and this was all the evidence given in said cause." Within the time allowed, the bill of exceptions was duly presented to the judge on April 22, 1911, and the same was on that day duly signed by him and ordered made a part of the record in this cause, all of which is shown by the judge's certificate, signed, sealed and attached to said bill of exceptions on the same day. The bill of exceptions bears the file mark of the clerk of the Boone Circuit Court of date, April 22, 1911. The clerk of that court on May 2, 1911, certified the transcript to contain "full, true and complete copies of all papers," etc., "and also the original bill of exceptions filed in the office of the clerk of the Boone Circuit Court on the 22nd day of April, 1911, and which had theretofore been filed in open court, signed and sealed by the regular judge thereof, who presided in the trial of said cause, and which bill of exceptions was then and there made a part of the record of this cause, all as required by the foregoing precipe filed herein." The precipe called for "the bill of exceptions filed in the office of the said clerk on the 22nd day of April, 1911," and no other bill is mentioned or shown by the record. It has been held that the fining of the bill of exceptions containing the evidence may be shown either by an order book entry or the certificate of the clerk. The clerk's certificate shows the filing in this case. Hoffman v. Isler (1912), 49 Ind.App. 284, 97 N.E. 188.

Where the bill of exceptions itself shows that it contains all the evidence given in the cause and it is duly certified and made a part of the record by the trial judge, the failure to state in the certificate such fact is not a valid objection, for by signing the bill and ordering it made a part of the record he thereby adopts it as his own judicial act and all its statements become verities in this court. McCoy v. Able (1891), 131 Ind. 417, 421, 30 N.E. 528, 31 N.E. 453; Fisher v. Bush (1892), 133 Ind. 315, 320, 32 N.E. 924; Shea v. City of Muncie (1897), 148 Ind. 14, 19, 46 N.E. 138; Oster v. Broe (1903), 161 Ind. 113, 120, 64 N.E. 918. We think there is a substantial compliance with the statute and that it appears with sufficient certainty that the bill of exceptions signed by the judge, filed and made a part of the record, is the bill containing the typewritten manuscript of all the evidence given in this cause. §§ 657-660 Burns 1908, Acts 1897 p. 244, § 629 R. S. 1881.

The first paragraph of complaint alleges in substance that the plaintiff, Daugherty, was a livery man at Zionsville, Indiana, and on June 19, 1910, hired to the defendant, Reveal, a black mare to be driven by him on that day and returned to the plaintiff; that plaintiff had demanded the return of the mare but defendant had failed to return her and had converted her to his own use to the damage of the plaintiff in the sum of $ 200. The second paragraph in addition to the facts alleged in the first, charges that the plaintiff hired the mare to the defendant to be driven by him to the residence of Niel Sullivan only, and placed in the barn and left there until defendant was ready to return home; that defendant agreed not to drive the mare to any other place and agreed not to leave her hitched out, but that defendant in direct violation of his contract of bailment did drive the mare to other places and did leave her hitched out to the post for a long time just previous to starting home, by reason of which violation of said contract of bailment, the mare was killed and the buggy and harness destroyed to plaintiff's damage. The third paragraph alleges the same facts as to the hiring as the second paragraph and then charges that defendant so carelessly, negligently and imprudently drove the mare that she was thrown to the ground, her neck broken, and the buggy and harness damaged. The fourth paragraph is similar to the third except that it alleges a malicious, wanton, careless and unlawful injury to the horse and buggy of the plaintiff which caused the neck of the horse to be broken and the buggy and harness to be destroyed.

The substance of the testimony most favorable to appellant is as follows: appellant, a livery man, knew that appellee was a minor under the age of twenty-one years, and on June 18, 1910, appellee came to his livery barn and asked if he could get a horse early the next morning to drive to Niel Sullivan's; that he would put the horse in the barn at Sullivan's and leave it there until he was ready to return and asked what would be the cost of such hiring and was informed it would be $ 2; that about eleven o'clock p. m. of June 19, appellant was informed, over the telephone by appellee that he went to turn the mare around to start home and she feel and broke her neck; that the buggy got on a lock and he jumped out to save himself and let her go. The evidence further shows that appellee procured the mare on Sunday morning, June 19, and drove to Sullivan's; that in the forenoon, in company with the daughter of Mr. Sullivan, he drove to and from Sunday school, a mile and a half or two miles from Sullivan's residence; that between two and three o'clock in the afternoon he went out driving and returned to Mr. Sullivan's between five and six o'clock; that on return the horse was hitched in front of the house for a time and then the horse driven by appellee was again put in the barn about seven o'clock p. m.; that the horse was driven slowly, and was not in any way injured or affected by such use.

While the evidence shows that appellant knew appellee was a minor, and it is not shown that a guardian ad litem was appointed for him, the record shows that he appeared by attorney, filed a general denial to each paragraph of the complaint and participated in the trial up to the close of appellant's testimony when he moved for and obtained a peremptory instruction in his favor. In Winer v. Mast (1896), 146 Ind. 177, 183, 45 N.E. 66, it is said: "It is true that infancy may be pleaded either in abatement or in bar, depending on the facts shown. In case the facts pleaded show, or do not deny a good cause of action, but merely disclose that the party is a minor and therefore cannot maintain or defend the action, then the plea, if made, would be in abatement. Doubtless, however, the court, in such case, would appoint a guardian ad litem for a minor defendant, and the trial would proceed; even if judgment should be entered without such appointment, the error would be but an irregularity, and the judgment, if not attacked on its merits, would stand." We do not think the suggestion in the motion of the minority of the defendant and the failure to appoint a guardian ad litem for him, authorized the court to direct a verdict in his favor. Needham v. Wright (1894), 140 Ind. 190, 39 N.E. 510; Watson v. Wrightsman (1901), 26 Ind.App. 437, 438, 59 N.E. 1064; Evans v. State, ex rel. (1877), 58 Ind. 587; DePriest v. State, ex rel. (1879), 68 Ind. 569.

There is clearly a failure of proof under the paragraphs of complaint which allege either a negligent or wilful injury to the property. There is no evidence tending to show, that any such act or omission of appellee was the proximate cause of the injury. While there may be other reasons, this is sufficient to show that the court did not err in directing a verdict as to the paragraphs charging either a negligent or a wilful injury.

The most serious question arises under the paragraphs which charge a bailment and a conversion of the property. The general rule is that the plea of infancy is a personal privilege and must be pleaded by the defendant in case the record does not disclose his infancy. Cohee v Baer (1892), 134 Ind. 375, 377, 32 N.E. 920; Watson v. Wrightsman, supra. In this case there is no plea of infancy but the evidence shows that appellee was under twenty-one years of age and that appellant knew that fact when he hired...