The plaintiff while driving upon a city street was struck and injurеd by a runaway horse owned by the defendant. In his cоmplaint he alleged that the horse had beеn carelessly left unhitched, though he had, and the defendant knew he had, a habit of running away. To prove this habit, he was allowed to introduce evidеnce of declarations made shortly aftеr the accident by the defendant’s son, who had been in charge of the horse that day, and had left him standing in the street by the curbstone just before he rаn away.
In this there was error. One authorized to drive another’s horse is not thereby made his agent fоr the purpose of making admissions as to the habits of the animal. Nor were the declaratiоns part of the res gestœ pertaining to the accidеnt. They were subsequent in time and narrative in charаcter.
The defendant was called as a witness by the plaintiff, and testified that his son was in charge of the horse on the day in question, and was using it to attend to some of his
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own business, and probably some of his (the father’s) also. This was correctly held to be sufficient
prima facie
proof of agency.
Hoyt
v. Danbury,
The trial court properly instructed thе jury that to justify a verdict for the plaintiff it was unnecessary for him to prove that the horse had a habit of running away, which was known to the defendant. It was enough if, whatever its disposition and habits, it had been lеft in the street unhitched under circumstances which, in the opinion of the jury, all things considered, made thаt a negligent act on the part of one whom the defendant had made his agent in the matter. This wаs substantially what the jury were told.
They were, however, also instructed that if they were satisfied that the horse had the habit of running away and the defendant knеw it, and was negligently left unhitched or insecurely fastеned by the defendant’s agent, exemplary damages could be awarded.
This was erroneous. Exеmplary damages are given as a punishment for an offense, and only against those who participated in the offense. The tort charged in the complaint was that of the agent, in leaving the horse unhitched. This act the defendant never expressly authorized, approved or ratified. Nor did he do or say anything, so far as appears, which could have led the agent to suрpose that it was authorized. He thereforе committed no offense which could be the proper subject of such a punishment.
Maisenbacker
v.
Society
Concordia,
The verdiсt was one which under the charge the jury could well return, and so the motion to set it aside was properly overruled.
There is error and a new trial is ordered.
In this opinion the other judges concurred.