92 Iowa 348 | Iowa | 1894
Plaintiff’s cause of action is stated in two counts. The first charges that on September 1, 1892, defendant had and received from the plaintiff a pair of horses and buggy, of the value of two hundred and fifty dollars, to drive from Delhi, Iowa, to Manchester, Iowa; that defendant drove said horses so immoderately, and so neglected their care, that one of them became sick, and defendant, knowing said fact, continued to drive and abuse said horse until his death; that plaintiffs were damaged in the sum of one hundred dollars. In a second count, plaintiffs aver that they paid two dollars, at defendant’s instance, to have the horse buried. In an amendment it is averred that the team and buggy were -loaned to defendant to go from Delhi to Manchester and return, and that defendant, after driving to Manchester, converted said team and buggy to his own use, and failed to return said team as received, and still fails to return one of said horses,
II. On Sunday, September 4, 1892, defendant hired of plaintiffs a team of horses and a buggy to drive from Delhi to Manchester and return. After arriving at Manchester he drove six or seven miles into the country. He then returned to Manchester, where he let one Luke Connelly drive the team to the fair ground and back, after which defendant and Connelly started on the return trip to Delhi, and, when about midway between the two places, one of the horses was taken sick and died. At the close of plaintiff’s testimony, defendant moved for a verdict, which motion was overruled. The grounds of the motion were, first, that the testimony showed a letting of the team on Sunday, and plaintiffs did not bring themselves within the exceptions of the statute prohibiting work on that day; second, that it was not shown that the death of .the horse was caused by driving to a place other or different from the place where it is alleged the horses were let to be driven; and, third, no negligence or misconduct of the defendant is shown in the management or driving of said horse. We need not consider the ruling on this motion, as the questions therein presented are also raised in the further progress of the trial. In the seventh and eighth instructions given by the court to the jury, they were told, in substance, that if defendant hired the team, and drove them so immoderately, and was so negligent in caring for them, that one of them became sick, and defendant, with knowledge of such
In Spooner v. Manchester, 133 Mass. 270, the court defined a conversion as follows: “Conversion is based upon the idea of an assumption by the de
We are not willing to give our sanction to the broad, and, when applied to a case like that at bar, harsh rule of the instruction. It must be borne in mind that, in almost every case where that strict rule has been applied, the facts have shown that the hirer, in addition to departing from the contract line of travel, was guilty of negligence or of willful misconduct, or that he injured or' destroyed the property while outside of the limits of the contract of hiring. Schouler, Bailm., p. 137; Farhas v. Powell, 13 S. E. Rep. (Ga.) 200. In the case last cited the action was for the value of a horse which had died, and which it was alleged defendant had ridden beyond the place he had hired him to go, and that by negligence or cruelty the horse had been so injured as to cause his death. The horse was hired to ride from Albany to the Whitehead place, in the country, a distance of five miles, and was to be returned by 11 o’clock at night. When defendant arrived at the Whitehead place he learned that the person he wished to see was at the Bryant place, three or four miles further on, and he rode on to that place. He remained there two hours and a half, and left about 9:30 p. m. for Albany. On the return, and between the Whitehead place and Albany, the horse fell in the road. He got the horse up on his feet, and led him three miles, when he again fell. After getting him on his feet again, he put him in a lot near by, and went into town, and notified the plaintiff where the horse was, and of his condition. The horse died. It appeared that, when defendant got the horse to go upon his journey, he was sound and in good condition, and showed no signs of disease. The defendant showed that he rode the animal moderately. It was held that there was a technical conver