Hey v. Hawkins

Mr. Justice Brown delivered the opinion of the court. Fred Hawkins, the appellee, owned a horse which while harnessed to a coal team with two other horses was injured by the carelessness or wilful ness of a servant of the appellant, who drove a wagon over its front hoof. The appellee called a veterinary surgeon and had the horse treated for the injury. About three months afterward the appellee brought suit against appellant before a justice of the peace. The defendant made defau.lt and a judgment was rendered for $125. The defendant afterward appealed” to the Circuit Court, and there on a trial a jury assessed the plaintiff’s damages at $188.50. There was evidence before the jury that the horse was worth $150; that the appellee had paid $40 for his keep for four months, during which he was useless, and that at the end of four months had sold him for $1.50 to a horse killer. The verdict of the jury was, therefore, evidently the sum of the $150 and the $40, less the amount received from the killer. A motion for a new trial was made and overruled, and judgment entered on the verdict, from which judgment the defendant appealed to this court. Here he has assigned for error the allowance of improper and the refusal of proper evidence, the denial of the defendant’s motion for a new trial, and that the verdict was contrary to the evidence. In his argument he urges only that improper evidence was admitted and that the court made improper remarks in the presence of the jury which maj^ have prejudiced them. There is no assignment of error covering this last objection, but if there were there.would be nothing to sustain it. There was no exception taken to the remarks which are complained of, except as they were rulings on the admission of evidence, which will be considered separately. Mor was there anything said by the court that we can see was prejudicial to defendant. The remark especially objected to was made in a ruling in favor of appellant on the admission of evidence. As to the admission of improper evidence, two points are made by appellant. First, that persons not qualifying themselves as experts were allowed to testily to the value of the horse. This position is not well taken. Each one of the witnesses knew something of the value of horses, according to his uncontradicted statements, and the evidence of such a person is competent. Judge Catón in 1862 said: “Every one is presumed to have some idea of the value of property which is in almost universal use, and it is not necessary to show that a witness is a drover or a butcher before he is allowed to give an opinion of the value of a cow.” Ohio & Mississippi R. R. Co. v. Irvin, 27 Ill. 178. This language applies as well to a horse as to a cow, and we know of no authority to the contrary, but of many which confirm it. For example: Ohio & Mississippi Ry. Co. v. Taylor, 27 Ill. 207; Lycoming Ins. Co. v. Jackson, 83 Ill. 302; Chicago City Ry. Co. v. T. W. Jones Transit Co., 92 Ill. App. 507. Appellant’s second point is that the jury should not have allowed, in fixing damages, anything beyond the value of the horse. They should not have added the amount paid for his keep during the four months that the appellee was endeavoring to cure him. This objection to the judgment has no better foundation than the other. Anything which appellee paid for the keeping of a horse rendered useless by the fault of the appellant, was a part of the appellee’s damages, and unless and until he was reasonably convinced that he could not cure the animal, he was bound to make expenditures for that purpose, if in good faith and prudent judgment he thought that this might diminish the ultimate damages. He could have properly demanded and recovered such expenditures from the appellant as well as the •expense of keeping. Counsel for appellant says that Doctor Baker, a veterinary surgeon, “ notified the plaintiff right after the injury that the horse was useless and that he ought to shoot him.” If this were the evidence, the case would be different, for the plaintiff was bound to exercise good faith and reasonable discretion in not “ making unreasonable expenditures .in the hope of mitigating the injury.” But the statement must come from a misconception of the testimony of Mr. Hawkins. The fair inference from that testimony is not that Dr. Baker told him “ right after the injury ” that he might as well kill the horse, but that he treated the horse for four months, tried to cure it for that length of time in the expectation it would get better and then pronounced it incurable, and said to appellee, “ You might as well kill him.” Under these circumstances the great weight of authority is that the appellee is entitled as a part of his damages to his reasonable expenditures for the keeping and indeed for the attempted curing of the animal. Travis v. Pierson, 43 Ill. App. 579; Atwood et al. v. Boston Forwarding & Transfer Co., 185 Mass. 557, and cases therein cited; Sedgwick on Damages, 8th edition, section 438. There is no error in thé record, and the judgment of the Circuit Court is affirmed. Affirmed.