Mizner v. Frazier

Graves, J.

The parties were on a race course engaged in trotting horses before sulkies, and the horse and sulky employed by Mizner ran against the sulky occupied by Erazier and injured him and the horse and broke the sulky. He sued in trespass and obtained a verdict, and error is charged against some of the proceedings. The general ownership of the horse and sulky was in other parties. His connection with the sulky is very imper *594 fectly described in tbe declaration, but my brethren are of opinion that as there was no demurrer, it ought to be taken that the allegation imports that he held as bailee, and they also think that as he would be answerable over, he was entitled to full damages as against a mere wrong-doer. His control of the horse appears from his own testimony. He swore that he did not own the horse, but had it for the season and was to receive fifty cents a day from the owner for taking care of it and to have also what he could win with the horse in trotting races. We are not called upon to say whether the law would or would not construe the latter part of this arrangement as not lawful. It is only important now as one of the circumstances to show the precise nature of Frazier’s right to the horse and the very strict conditions upon which he held him. And this is quite material, because it is not competent to go outside of the circumscription of his right of use or employment for any criterion of damage recoverable at his suit. Now he held the horse as bailee, but subject to the special terms and with the restricted rights agreed upon. He was not entitled to let him at all, and was bound to personal trust. He was to take uninterrupted care of him. As a consequence he could not claim damage upon any theory of what the horse’s services at hire would have been worth in the market, because his right and interest did not include any license or authority to let the horse.

And in the next place it was not competent to estimate and allow damage upon the hypothesis of possible race winnings. Nothing could be more uncertain than a calculation of the fruits of such matters of chance, and any attempt to graduate recovery in a court of law by supposition of . what might have happened and what would have been accomplished in horse racing in the course of the season is absurd.

In ruling to allow it, as was the case in admitting evidence and in instructing the jury, the court erred.

*595 The only ground of damage apparent on account of loss of use of the horse is Frazier’s deprivation of such reasonable use as he might have had in person in giving the horse proper exercise. And there is no evidence applicable to that view.

No further discussion is necessary. We discover nothing in the case to justify remark upon some other topics noticed in the briefs.

For the error in the rulings in regard to damages, the judgment must be reversed with costs and a new trial ordered.

The other Justices concurred.