Houck v. Gue
| Decision Date | 02 July 1890 |
| Citation | 46 N.W. 280,30 Neb. 113 |
| Parties | DORSEY B. HOUCK v. JOSEPH H. GUE. SAME v. DANIEL C. HURLEY |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county. Tried below before GROFF, J.
REVERSED AND REMANDED.
John L Webster, for plaintiff in error, cited, as to directing the verdict: Hilliard v. Goold, 34 N. H., 230; Inloes v. Bank, 11 Md. 173; Way v. R. Co., 35 Iowa 587; Ellis v. Ins. Co., 4 Ohio St. 628; Johnson v. R. Co., 18 Neb. 696; Aullman v Stout, 15 Id., 586; A. & N. R. Co. v. Baily, 11 Id., 332; Deitrich v. Hutchinson, 20 Id., 52. As to the right of argument: Code, sec. 283; Douglas v. Hill, 29 Kan. 527.
Estabrook Irvine & Clapp, contra.
These causes being alike in the facts, by consent were tried together. The defendant in error Gue sued the plaintiff in error Houck and one Alexander Benham in the district court to recover the sum of $ 274 and interest, claimed to be due him for keeping and boarding eight head of horses. The cause was tried to a jury, with a verdict and judgment in favor of Gue and against both Houck and Benham. In the second case Hurley sued Houck and Benham to recover $ 240 and interest for care and board of seven horses. The verdict and judgment in the case were against both defendants. In each case Houck prosecutes a petition in error.
In May, 1887, the plaintiff in error, Dorsey B. Houck, was a constable of the city of Omaha, and in his official capacity executed a writ of replevin placed in his hands, commanding him to take and deliver to one J. H. McShane a certain building then occupied by Alexander Benham as a livery stable. In executing the writ the constable removed from the building several horses owned by Benham, and tied them in the street near the stable, where they remained several hours without water or food. Benham having refused to take possession of the horses, Houck took eight of them to the stables of Gue and seven to the stables of Hurley. Gue and Hurley both testify that they were not aware when they received the horses that they belonged to Benham, or that they had been abandoned by the owner. Shortly afterwards they learned that the horses belonged to Benham, who called frequently to see them, but did not offer to take them away. There is no dispute as to the value of the care and feed bestowed by the plaintiffs.
The plaintiffs called as a witness the defendant Dorsey B. Houck, who testified that when he took the horses to the plaintiffs, he informed them that he had replevied Benham's barn, and that the horses belonged to him; that they had been taken out of the barn and tied in the street. The witness further testified that he told the plaintiffs that he had no interest in the horses, but desired to put them in some place, to get them out of the street.
The defendants introduced no testimony. Houck's attorney attempted to argue the case to the jury, when he was stopped by the court, and instructed the jury to find for the plaintiffs.
The most of the brief of counsel on either side is devoted to the discussion of the liability of a constable for feed and care bestowed by a third party at his request, upon property received by him in his official capacity. We do not think that question is presented by the record before us. Houck had no writ for these horses and he did not have charge of them as an officer. He had a writ of replevin for the barn, but that did not authorize the officer, in executing the process, to engage food and care for the stock he removed from the building. Whether Houck was personally liable for the attention bestowed by the plaintiffs was a question of fact to be determined by the jury from all the evidence.
If it be true, as the plaintiffs testify, that Houck did not disclose who was the owner of the stock when it was committed to their care, and that the plaintiffs did not know whose property it was, then doubtless Houck would be liable in his action. But, on the other hand, if Houck at the time informed the plaintiffs the circumstances under which he received the horses and that he had no interest in them, but that they belonged to Benham, and to let him have them when called for then there was testimony from which the jury could...
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