Lovejoy v. Campbell
| Decision Date | 07 October 1902 |
| Citation | 92 N.W. 24,16 S.D. 231 |
| Parties | LOVEJOY v. CAMPBELL et al. |
| Court | South Dakota Supreme Court |
Appeal from circuit court, Spink county; A. W. Campbell, Judge.
Action by B. E. Lovejoy against B. E. Campbell and another. Judgment for defendant Campbell, and plaintiff appeals. Reversed.
N. P Bromley, for appellant. W. F. Bruell, for respondents.
It appears from the abstract that this action was commenced in justice's court, where the plaintiff recovered judgment that defendants appealed to the circuit court, where a trial de novo was had; that, at the conclusion of all the testimony in the circuit court, "defendant Campbell moved the court to direct the verdict of the jury for the defendant for the dismissal of said action against him, with costs, on the grounds that there was no evidence offered to prove that the defendant Campbell was liable for damage caused plaintiff by the alleged negligence of the defendant Suhling while said Suhling was in Redfield contrary to Campbell's orders and without his knowledge, and upon the further grounds that the plaintiff has no cause of action against this defendant, for the reason that the tree in question was growing on the street, and was a part of the street regularly dedicated to the public, according to the statutes and laws of the state of South Dakota, and that the plaintiff was not the owner of said tree"; that thereupon the court, of its own motion, submitted to the jury only one question, namely, the amount of damages, if any, the plaintiff sustained by reason of such tree having been gnawed; that the jury found the damages to be $7.50; and that, the propositions of law involved having been argued, the court rendered a judgment wherein it was considered and adjudged that defendant Campbell recover of the plaintiff the dismissal of the action, together with costs and disbursements, including the costs taxed in the justice's court. As no objection was made to the manner in which defendant Campbell's motion to dismiss was treated, we think the case should be regarded as if a motion to direct a verdict had been sustained; the ruling of such motion being reviewable without any motion for a new trial. What became of the action as to defendant Suhling does not appear.
Much improper evidence as against the defendant Campbell was received, but as it was admissible as against the other defendant, and as the record fails to specify the grounds, if any, of the objections made to its introduction, error cannot be predicated upon any ruling relating thereto. Plaintiff alleged in his complaint that he "was during the months of September and October, 1899, in possession and the owner in fee simple of lot 1 in block 11 in the city of Redfield, South Dakota"; All the allegations of the complaint were denied. We think the evidence discloses that plaintiff was the owner and resided on lot 1, block 11, in the city of Redfield; that a cottonwood tree was standing in the street in front of his lot; that defendant Suhling was employed by defendant Campbell to haul water with a team and tank belonging to the latter, for the use of the latter's threshing machine being operated on a farm about three miles from Redfield; that it was not necessary for Suhling to pass through Redfield in hauling water; that he was never sent by Campbell on any business that required him to leave or hitch his team; that he was simply required to go to the creek, fill his tank with water, and return with it to the engine where the threshing was being done; that Campbell was not at the machine, and did not know that he was going to Redfield, did not direct him to go there, and knew nothing of his having been there until some time after the injury was done; that, on one of his trips for water, Suhling, on the request of the engineer who was operating Campbell's engine, went to Redfield to get some oil; that Suhling tied one of the horses he was driving to a telegraph pole in front of plaintiff's residence; and that while he was in a store getting oil the other horse injured the tree heretofore mentioned, by gnawing its bark.
If either ground of defendant Campbell's motion to dismiss or direct a verdict was well taken, the judgment should be sustained, notwithstanding the lower court may have assigned a different reason for its ruling. In a case strikingly analogous to the one at bar the subject of master's responsibility for the negligence of his servant is exhaustively discussed by the supreme court of Connecticut and the general rule applicable to this class of cases is thus accurately and comprehensively stated: ...
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