Hart v. Haun

• Decision Date: 19 December 1890
• Docket Number: 14,635
• Citation: 26 N.E. 61,126 Ind. 378
• Parties: De Hart v. Haun
• Court: Indiana Supreme Court

26 N.E. 61

126 Ind. 378

De Hart v. Haun

No. 14,635

Supreme Court of Indiana

December 19, 1890

From the Warren Circuit Court.

Judgment affirmed, with costs.

W. P Rhodes and E. Stansbury, for appellant.

J McCabe and E. F. McCabe, for appellee.

OPINION

Olds C. J.

This was an action brought by the appellant in replevin, for the possession of a mare. Execution was issued against the property of the appellant on a judgment rendered against him in the Warren Circuit Court, in favor of Jacob Etmire for $ 500 in an action for malpractice. The writ was placed in appellee's hands, as sheriff of said county, and levied upon said mare, which was the property of appellant. The appellant filed at the proper time, with the sheriff, a schedule of his property, duly verified, and demanded the mare as exempt from execution, and the sheriff refusing to allow the appellant an exemption, this suit was brought for the possession of the mare, alleging the facts. The appellee answered in denial, and by a second paragraph. The second paragraph alleged that the judgment upon which execution was issued was rendered in said case of Etmire against De Hart, which was one of tort, setting out a copy of the complaint in said cause, and that issue was joined by general denial and a trial had, and the judgment rendered upon the issue so joined. The appellant demurred to the second paragraph of answer, which was overruled and exceptions reserved, and the ruling assigned as error. It is contended by counsel for appellant that the action of Etmire against De Hart was on contract, and, therefore, he is entitled to an exemption; on the other hand, it is contended by counsel for appellee that the action was in tort, and that appellant is not entitled to an exemption. The question to be determined arises upon the complaint in the action for malpractice.

The complaint is as follows:

"The plaintiff, Jacob Etmire, complains of the defendant, Jacob De Hart, and says that on June 8th, 1885, from a fall from his horse he dislocated, bruised and injured his right shoulder and arm, and the defendant, being then a practicing physician and surgeon, as such undertook faithfully, skilfully and diligently to treat and set, and endeavor to cure and heal said arm and shoulder. But the plaintiff avers that on the contrary thereof, the said defendant conducted himself in and about his endeavoring to set said arm and shoulder, and in and about curing the same, so unskilfully, negligently and unprofessionally that by reason of the improper treatment and unskilful and negligent conduct of the defendant, said arm and shoulder were not set, nor healed and cured, but were permitted to remain out of place for the space of four weeks, until it became impossible to properly set or cure the same. Whereby," etc.

We think it clear that this complaint is for the tort, and not a suit upon a contract. The complaint alleges no more than the law imposed upon the defendant, and is implied on the part of the surgeon from undertaking the services, and it does not attempt to allege a contract and breach thereof.

In 1 Chitty Pleading, p. 397, it is said: "When the plaintiff's right consists in an obligation on the defendant to observe some particular duty, the declaration must state the nature of such duty, which we have seen may be founded either on a contract between the parties, or on the obligation of law, arising out of the defendant's particular character or situation; and the plaintiff must prove such duty as laid, and a variance will, as in actions on contracts, be fatal. When the declaration is for the breach of an express or implied contract, and proceeds for...