3 Watts 460 | Pa. | 1835
The opinion of the Court was delivered by
This was an action of trespass brought by Weakly, the plaintiff in error, against John Royer, Benjamin Royer and Emanuel Royer for beating and killing a colt, the property of the plaintiff. On the trial of the cause, the plaintiff produced witnesses who testified that John and Benjamin beat and abused the colt on Friday of a certain week before the commencement of the suit, and that Emanuel beat and abused it on the Saturday following. The defendants were brothers, and lived together as members of their father’s family; but it did not appear from the evidence that there was any concert between them for the purpose of beating the colt. It was merely testified by the witnesses that John and Benjamin beat the colt on Friday without the presence of Emanuel, or any direction from or participation by him therein, that they knew of; and that Emanuel, without the presence of John and Benjamin, or either of them, or any direction from them or either of them that the witnesses knew of, beat the colt on Saturday; and that the colt died some time afterwards with apparent marks of violence upon it.
The court, after the evidence was closed, instructed the jury, among other things, that “from the injury of Friday it [the colt] may have been more easily killed on Saturday. This would not excuse Emanuel if he inflicted the further injury that occasioned its death. But it would not render John and Benjamin liable, if the fatal injury was not committed by them, though they might have done some injury to the colt on Friday.”
In this instruction the plaintiff alleges that the court erred. It has been argued, and strongly urged by the counsel for the plaintiff, that the court ought to have instructed the jury, that if they believed from the evidence given, that the death of the colt was occasioned partly by the beating of Friday and partly by that of Saturday, it was their duty to find a verdict for the plaintiff against all the defendants jointly, giving him damages at least equal in amount to the value of the colt; or in case they should be of opinion that the death of the colt was produced either by the beating of Friday, or by that of Saturday,*but could not determine which, that it would be proper for them to give a like verdict in favour of the plaintiff. If it had appeared from any part of the evidence that Emanuel had been accessary in any way to the beating of the colt by John and Benjamin on Friday, or that John and Benjamin had been accessary to
Now if the killing of the colt had been the gist of the plaintiff’s action, the charge of the court would have covered the whole case, and have given to the jury every thing necessary to be known in respect to the law on the subject to enable them to find a verdict in accordance with it. But the unlawful beating of the colt was the very gist of the action, and not the killing. The killing was introduced into the declaration as the effect of the beating, and to show the extent of the injury which the plaintiff sustained thereby. It is therefore only a circumstance which, if found by the jury to be true, required them to give proportionate damages. The beating of the
Mr Starkie, in his Treatise on Evidence, part 4, page 1441, also lays it down, that “if, in an action against A and B, the plaintiff proceed for several trespasses, but cannot show that A and B were concerned in all of them, he must elect to proceed on those only which they committed jointly ; or if he choose to proceed in respect of any trespass committed by A alone, B will be entitled to a verdict of acquittal.” For this he refers, in the margin, to a nisi prius decision of Lord Kenyon, in Sedley v. Sutherland, 3 Esp. Ca. 202, which seems to sustain him. So in Nicoll v. Glennie, 1 M. & S. 588, it was held that a plaintiff in trover could not recover against several defendants for several conversions of the same goods ; but, in order to fix all the defendants, he must prove a joint conversion by all, and if the evidence showed separate conversions, he must take his verdict against those defendants only who were parties to one conversion, and all the other defendants must be found not guilty. Doubtless many powerful reasons may be advanced in support of this latter doctrine ; and perhaps the better opinion is, that the plaintiff can have judgment but for one of the sums assessed as damages. I, however, do not intend to express any definitive opinion on the point; but am decidedly of opinion that after a plaintiff, either in trespass or trover, against two or more defendants, has been permitted without objection to give evidence showing that they had severally committed two or more trespasses or conversions, that the jury, if they credit the evidence, may give, and unless the plaintiff by his election dispense with it, ought to give a verdict finding them guilty severally, and assessing the damages severally according to the evidence ; after which the plaintiff, although it may be that he cannot have judgment against them severally, according to the finding of the jury, yet has a right to make his. election, and to say
Taking this view of the matters involved in this case, and conceiving that the jury, from the charge of the court, misapprehended the gist of the action, as well as the grounds upon which the plaintiff would have been entitled to recover damages, in case the jury from the evidence should' be of the opinion that the defendants had either jointly or severally beaten the colt, I think there ought to be a new trial.
Judgment reversed, and a venire de novo awarded.