Brudi v. Luhrman

26 Ind. App. 221 | Ind. Ct. App. | 1901

Robinson, J.

Appellee’s motion to dismiss this appeal because no final judgment was rendered can not be sustained. Upon the jury’s verdict judgment was rendered, which, upon appellants’ motion, was set aside. Appellants then filed motions for a new trial, which were overruled, and judgment rendered on the verdict, from which judgment this appeal is prosecuted.

Appellee was driving his team along the street when one of his horses was struck by a wagon in charge of an employe of Brudi Brothers, and the horse injured and the harness damaged, for which he sues. The evidence showed that the firm of Brudi Brothers was composed of Henry and Gottlieb Brudi. There is no evidence to show any liability on the part of Carl Brudi. There is no evidence that he was a member of the firm or had any interest in it when the injury occurred. The only evidence in any way connecting him with the matter was his own testimony which was not contradicted. He was asked if his name was not on the advertisements as manager, and he answered that he had been in the business, had a wagon built with his name on it, and afterwards sold out to the boys, that he let them use his name to cause the public to feel that it was his business, as his reputation was better known than theirs, but that he had no connection with, the firm of Brudi Brothers. The suit is for the wrongful act of an employe of the firm, and there is no evidence that at the time the injury occurred he was a member of the firm or had any interest in the business. His liability to a creditor of the firm, under the circumstances, would present a different question.

The jury returned a verdict for $100. There was evidence that after the injury the horse was worth $25 dollars, and before the injury from $75 to $125. loss of time and money expended by reason, of the injury would be proper elements of damage, and also damage done to the harness. The damages found by the jury are not excessive.

Objection was made to certain questions which went to the measure of damages. It is unnecessary to discuss these questions at length for the reason that it does not appear that any part of the amount was necessarily made up from this evidence. There was evidence, clearly competent, and to which no objection was made, to sustain the jury’s verdict in the amount of damages given.

There was evidence that the employe was driving in a careless and reckless manner at the time of the injury. Even if it should be admitted that evidence of careless and reckless driving at other times was not competent, the admission of such evidence would not be reversible error.

The court correctly instructed the jury, in substance, that a master is responsible for injuries resulting from the negligent manner in which an employe does the master’s business. The servant’s act within the general scope of his employment is the master’s, and if injury occurs through the servant’s negligence while so acting the master is liable.

Taking the instructions as a whole they correctly state the law. What we have said as to the proper elements of damage applies to the question raised upon some of the instructions. There is not sufficient evidence to sustain the verdict against Carl Brudi. As to the other appellants there is no reversible error. Judgment reversed as to appellant Carl Brudi, and affirmed as to the other appellants.