Bryant v. Goodwin and Faxon.

town clerk of Amherst township to the auditor warrant him in levying the tax in question, and of doing it wholly upon property lying within so much of said district as lies in Amherst township?" The objections urged to the sufficiency of the certificate, do not seem to regard its form so much as its substance. It is intimated in the argument, that the vote certified, was passed at a meeting held on the 27th of May, and the certificate does not contain any statement that the board deemed it equitable and just to assess that amount against the sub-d strict. The board, in estimating the amounts to be raised annually for school purposes, are not restricted to the regular session of the board; but may discharge that duty at either a regular, adjourned, or special session, and the only limitation seems to be, that the several amounts to be raised for school purposes, shall be certified to the auditor on or before the first Monday in June, of the same year. Nor need the certificate contain a statement, that the board deemed the amount certified, a just and equitable imposition upon the sub-district. The statute (sec. 23) merely requires that the amount shall be certified, with at map of the lands and names of the tax-payers of the sub-district. The amount was certified with a list of the tax-payers, prior to the first Monday in June, 1854, and we hold this a substantial compliance with the statute. But the objections mainly relied on are, that the certificate purports, on its face, to impose the burden upon only a part of the sub-district, and also that it casts the whole estimated cost instead of only a part of the estimate, upon the subdistrict. The objection that it imposes the burden upon only a part of the sub district has been noticed already. As the law then was, it could only have been imposed upon that part of the district which lay within the limits of Amherst township. But it is also said that the certificate assesses the entire instead of only a part of the estimated cost of the school-house against the sub-district, and 483] the argument is, that section 23 merely authorizes the board to assess such portion of as they may deem just and equitable, but not the whole cost, upon the sub-district. The power conferred upon the board is purely discretionary, and to be exercised by them with a view to equalize the burdens of taxation among the various sub-districts, up to the time when the amount is so certified. The board, in this case, have said that in their opinion, it is but just and equitable for the sub-district to pay the entire cost, but upon what grounds is not disclosed, nor is it material that it should be

Puterbaugh v. Reasor.

Cases may be supposed in which such a determination would be just and equitable, and we are bound to presume that such a case was before them. The argument drawn from the expression "such portion as they may deem equitable," etc, needs but little comment from us. It admits that the board, in their discretion, may apportion to the sub-district all but the last cent, and if that cent is left to be paid by the township at large, the restriction is satisfied. Such a construction leads to absurd and insignificant results, and is not to be countenanced. Where, in the opinion of the board, a sub-district in which a school-house is to be erected, has not therefore borne a reasonable share of the burden of taxation for such purposes, in comparison with other sub-districts in the township, they may, say section 23, certify such portion of the amount as they may deem just and equitable to the county auditor, to be assessed upon the duplicate against the property in the sub-district; and we hold that if the board, in such case, think it just and equitable to estimate and certify the whole, they need not stop a cent or two short, on account of the words "such portion of the amount." Judgment affirmed.

BRINKERHOFF, C. J., and SCOTT, SUTLIFF, and GHOLSON, JJ., con

curred.

*GEORGE PUTERBAUGH v. CHRISTOPHER REASOR.

[484

Where P., pursuant to contract, furnished J. R. a team, to be used in the farming of lands of P., for the joint benefit of the parties; and J. R., whilst using the team accordingly, carelessly left it unfastened, whilst he engaged in a noisy affray with C. R., near to the horses, by which they were frightened and ran off, and one of them was killed: Held, that the want of ordinary care of the team on the part of J. R., being a proximate cause of the injury, will prevent a recovery therefor, in an action brought by P., the owner, against C. R.

IN error to the district court of Montgomery county.

The plaintiff in error brought suit against the defendant in error and one John Reddick, before a justice of the peace, charging the defendants with having unlawfully caused the death of his bay

Puterbaugh v. Reasor.

mare, on the 12th of September, 1853. Upon the trial, he recovered a judgment against both the defendants for $96 and costs.

The case was appealed by the defendant Reasor, and the plaintiff filed his petition in the court of common pleas, stating substantially the same cause of action-that, on the 12th of September, 1853, the defendants caused the death of his gray mare by their negligence and by their willful and unlawful misconduct; that she was at that time worth $96, for which sum, with interest and costs of suit, he asked judgment.

The defendant Reasor answered, denying that he had either by himself, or in connection with said John Reddick, or any other person, caused the death of plaintiff's bay mare, by negligence, willful, and unlawful misconduct, or in any other way.

The issue thus joined between the parties was tried by a jury, and a verdict rendered in favor of the defendant Reasor. The plaintiff moved for a new trial, on the ground that the verdict was contrary to law and the evidence, and that the charge of the court 485] was contrary to law. This motion was overruled, and judgment entered on the verdict.

A bill of exceptions was taken on the trial, embodying the evidence, which shows substantially the following state of facts:

John Reddick, who was sued jointly with Reasor, was, in 1853, engaged in farming a portion of the plaintiff's farm, on the shares. Puterbaugh, the plaintiff, found the grain, farming implements, and team, and Reddick raised the crops, and gave Puterbaugh a certain share of the produce. On the 12th of September, when the mare was killed, Reddick was harrowing in the plaintiff's field, with this mare, and another horse, both belonging to the plaintiff. The defendant, Reasor, was plowing in a neighboring field, which was separated from the plaintiff's field, by a lane, along which ran a country road. Reasor went over into plaintiff's field, where a quarrel took place between him and Reddick, which resulted in Reasor's going over the fence, and inviting Reddick to come out on the road, if he thought himself the better man of the two. Reddick accepted the challenge, and leaving his team unfastened, crossed the fence, and after some preliminary "jawing," the parties joined battle on the road. In the course of the affray, the parties came into contact with the fence, and the noise frightened Reddick's team, which he had left standing about three rods distant from the scene of action. The horses ran a short distance with

Puterbaugh v. Reasor.

the harrow, when the "bay mare was killed by striking against

a tree.

The court thereupon charged the jury as follows: "The plaintiff alleges that a valuable mare, owned by himself, has been killed through the instrumentality of the defendant, Reasor, and his codefendant in the court below, Reddick. That the said Reasor and Reddick engaged in an affray, or fight at fisticuffs, near where the plaintiff's team was standing, and made so much noise and confusion that the horses took fright and ran off; and in the act of running off, the mare struck her breast against a sappling, or [486 something of the kind, and killed herself; and the owner of the mare asks a verdict, at your hand, for the value. If the defendant, Reasor, engaged in a fight at fisticuffs, with Reddick. by agreement, that is, if Reasor and Reddick fought, by agreement, so near to the team of the plaintiff as to frighten them and cause them to run off, the defendant, Reasor, will be liable, unless you should find the running away of the team, in some degree, attributable to the negligence of the plaintiff himself. It is maintained by the defendant, Reasor, that Reddick was the agent of the plaintiff in his custody and control of the mare, and that this appears from the proof. That it was no fault of him, Reasor, that the horses were left standing, unhitched in the field, whilst Reddick came out in the road to fight him; that the act of Reddick, in thus leaving the team unhitched, was an act of gross negligence, contributing powerfully to the accident for which suit is brought; and, that, under the circumstances, the defendant, Reasor, ought not to be held liable, in law, to pay Puterbaugh for the mare. If Reddick had the custody of Puterbaugh's mare, as the agent of Puterbaugh, and left her in the team, standing, unhitched, in the field, whilst he, Reddick, went out into the road to fight; if he then engaged in a fight, and whilst fighting, the horses ran off, the plaintiff can not recover, providing you should be of opinion that such leaving of the team, unhitched, was an act of negligence, and that it was one of the causes of the horses running off, which it would be, if the noise of the fight occasioned them to run."

To this charge of the court, and to the overruling of the motion for a new trial, the plaintiff excepted.

The plaintiff also moved the court to render judgment against Reddick by default, but "the court having examined the papers, and heard the testimony, found that said Reddick did not appeal,

Puterbaugh v. Reasor.

487] nor authorize an appeal, in his *behalf, and was not in court," and therefore overruled the motion.

The plaintiff thereupon filed his petition in error, in the district court, asking for a reversal of the judgment of the court of common pleas for sundry errors in the charge of the court as given to the jury, and for error in not charging what was necessary to constitute said Reddick the agent of the plaintiff, in so far as the custody of said mare and the cause of her being killed is concerned; and also for error in overruling the motion for judgment by default against Reddick.

The district court affirmed the judgment of the common pleas, and this judgment of affirmance the plaintiff now seeks to reverse.

Lowe & Booth, for plaintiff in error.

Conover & Craighead, for defendant in error.

SCOTT, J. Counsel have discussed at length the question as to the relation which Reddick sustained to Puterbaugh, in the possession and use of the team, at the time when the injury complained of took place. It is claimed for the plaintiff, that Reddick was a lessee of Puterbaugh's field, and a bailee for hire of his team; while, on behalf of defendant, it is claimed that the evidence shows Reddick to have been working for Puterbaugh under a contract of hiring, by which he became the servant and agent of the plaintiff in the custody and care of the team. It is, perhaps, not essential in this case to determine the precise character of the relation created by the contract between Puterbaugh and Reddick. Whatever that relation may have been, it is not, and can not be, questioned but that under and in pursuance of their contract, Reddick was intrusted by Puterbaugh with the possession, custody, and care of his team, and was responsible to him for ordinary care of the 488] horses, while under his charge. But the defendant, Reasor, was no party to this contract, and it imposed no obligations upon him. As against him, and all other strangers, the possession of the team by Reddick was the possession of Puterbaugh. And the duties and liabilities of strangers, in respect to the horses, would be the same, whether their owner or his agent or bailee might have the actual custody of them at the time. Third parties would have a right to expect and require the same care from the one as the other.