1 Pin. 494 | Wis. | 1845
The defendant in error commenced his action by attachment, against the plaintiff in error, in the district court of Iowa county. The declaration is in assumpsit for money had and received, and the parties went to trial on the general issue.
It did not appear that there was any credit to the plaintiff on the books of the bank, or on the note of the plaintiff in the bank, of the sum of $600. The note was for the sum of $2,203.68.
The court charged the jury, as returned in the bill of exceptions, “that what amounts to gross negligence is a question of law for the court to decide;.that is, it is a question of law as to what particular facts amount to or constitute gross negligence; that it was only for the jury to inquire, whether from the testimony in the cause such facts exist. And if the jury believe from the testimony that it was the undertaking of the defendant to deliver the money deposited with Mm, by plaintiff, to one of the officers of the bank, in the bank, 'and to have it indorsed on the plaintiff’s note ; and if, instead of taking the money to the bank and having it so indorsed on said note, he (the defendant) handed it to Brace, the teller, on Ms way to the banking house, and there was no proof of its having reached the bank, and of its being credited on said note, then the defendant was guilty of gross negligence.”
The jury returned a verdict for the plaintiff, when the
The law is well settled, that a mere naked or gratuitous bailee, without reward, is only liable for gross negligence. And it is as well understood that the facts proven should be submitted to the jury, whose province it is to determine whether they amount to a case of gross negligence or not. It is the duty of the court to explain to the jury, what is gross negligence, as understood inlaw ; and the province of the jury to find and apply the facts.
It is understood to have been conceded at the argument, that the entire testimony given in the cause, is embraced in the bill of exceptions ; such being the case, this court is enabled to examine it, in connection with that part of the charge returned, and to decide satisfactorily upon its. applicability to the testimony, and whether injustice has been done the defendant.
The plaintiff” handed the money to the defendant, with a request to take it to the bank, and pay it or hand it to Knapp the cashier thereof, and have it indorsed on his (the plaintiff’s) note, which the defendant promised to do.
This is termed in law, a mandate, which is, where one undertakes, without compensation, to do some act for another in respect to the thing bailed. The labor and service are the principal objects of the parties, and the thing bailed is merely accessorial. If the mandatory merely undertakes to carry the article from one place to another, he is responsible only for gross neglect, or a breach of good faith. But if he undertakes to perform, gratuitously, some work or service relating to it, and actually enters upon the execution of the business, then he is bound to use a degree of diligence and attention suitable to the undertaking, and adequate to the performance of it. If he does it amiss, through the want of due care, by which damage ensues to the other party, an action will he for this misfeasance, and the party thus injured can recover to the extent of the injury. The defendant received this money for the special purpose of
It is contended, that from the testimony of Brace it may be inferred that the money was not lost to the plaintiff, and that therefore, the cause should be submittted to another jury. It is certain that the money has never been credited to the plaintiff, on the books of the bank or on the note. If it was handed to Brace in the street, he has not accounted for it satisfactorily. It is the duty of the defendant to account for the money. The roll of notes is traced to him, and probably to his witness Brace, and there it rests. It is not to be pretended that the consideration of Brace’s testimony was withdrawn from the jury; or that the whole charge is returned. Prom the vague and uncertain testimony of Brace, coupled
It is not every error in the ruling of a court that should require the reversal of a judgment. This court never reverses a judgment for errors clearly unattended with actual prejudice. Campbell v. Colhoun, 1 Penna. 140; Johnston v. Brackbill, id. 370. A new trial will be granted for the misdirection of the court, although the evidence may have warranted the verdict found, when the chances are equal that the verdict resulted from the misdirection. Wardell et al. v. Hughes & Moore, 3 Wend. 418. But this is not such a case. The jury would not be warranted in finding a verdict for the defendant, upon the evidence in this case.
These remarks dispose of the whole case, except the last reason for a new trial, which is as follows:
“Because the said defendant was taken by surprise, by the testimony of Abner Nichols, in this, that the defendant supposed all that would be proven by said Nichols was, that the defendant was to hand the money to one of the officers of the bank, and no more; and also by the introduction of witnesses to discredit and impeach the testimony of Brace, which, had the defendant have known, he would have been prepared with witnesses to rebut.” There is certainly nothing in this. A party must use due diligence in the preparation of his case. He may, if he chooses, ascertain what a witness is to prove, and should procure testimony in opposition. It frequently occurs that a witness states more facts than was expected, but it would not do to set aside a verdict for that reason. If such a rule were to prevail, few verdicts would stand. Proof to discredit might have been anticipated, and the defendant should have been prepared to meet it. He does not even give the court to understand the nature or extent of the evidence he could have introduced upon the subject, nor is it alleged that*501 it was unknown to Mm at the trial, or that it is newly-discovered.
It is ordered that the judgment of the district court be affirmed.