5 Ind. 546 | Ind. | 1854
This suit was commenced on the 4th of December, 1852, before a justice of the peace. The cause of action is as follows:
“ John R. Wilcox borrowed my mare, valued at 60 dollars, on the 4th of August, 1852, and promised to return her in half a day or one day, and let another man (Cook) have her to ride, who rode her three days and killed her by hard riding and bad usage. To my damage 100 dollars. [Signed] Edward Hogan.”
Before the justice, Hogan recovered 55 dollars. Wilcox appealed. In the Circuit Court the evidence tended to show that Wilcox got the mare to use in hunting his horse which had gone astray, and that Hogan knew the purpose for which his mare was to be used; that one Cook, in the employment of Wilcox, made use of the mare three days, and then returned her; that about two weeks after the mare was returned, she died, and that her death was caused by hard riding and bad usage, while in Cook’s possession.
Verdict for the plaintiff below. New trial refused and judgment, &e.
In the cause of action the mare is alleged to be worth 60 dollars, and damages are laid at 100 dollars. Now, had
By an act in force when this suit was brought, it was provided that the jurisdiction of a justice should extend to 100 dollars in debt, covenant and assumpsit; but in all actions founded in tort to 50 dollars only. R. S. 1843, c. 47, s. 2.
The nature of the complaint must, in this case, determine the extent of the jurisdiction. If the gravamen of the action is in tort, the justice had no authority to adjudicate upon the merits of the controversy, because the damages are an amount to which his jurisdiction did not extend. But in the record there is nothing leading to that conclusion. This was an ordinary case of bailment, for the sole benefit of Wilcox, the bailee. The law required great care on his part and made him responsible for slight neglect. Story on Bailment, s. 23. Wilcox received the mare, at least, under an implied promise to use her with sufficient care, and to return her within a reasonable period. A failure to comply with that contract constituted the substance of the complaint. Therefore, the action was not founded in tort; but upon a breach of contract.
Whether Wilcox did or not fulfil his implied engagement, was a question for the jury; and we think the weight of evidence supports their verdict.
Per Curiam. — The judgment is affirmed with costs.