Polk & Hensley v. Coffin & Swain

Terry, C. J., delivered the opinion of the Court—Burnett, J., concurring. This action was commenced by Polk, as plaintiff, against the [58]defendants, to recover damages for injuries to plaintiff’s cattle, occasioned by the breaking of the wharf of defendants, who were ferrymen at Benicia. After the close of the evidence for plaintiff, the Court permitted the complaint to bo amended, by inserting the name of Hensley as co-plaintiff. Judgment was rendered for plaintiffs, and defendants appealed.

The appellants assign, as error: First, permitting a witness for the plaintiff to testify as to his estimate of the damage done to the cattle. Second, the admission of the ordinances of the city of Benicia, and the record of the defendants’ ferry-license from Contra Costa county. Third, the refusal to nonsuit plaintiffs.

We do not think any of the points well taken.

The witness, Hensley, testified that his business was that of a stock-raiser, and, therefore, he was capable of forming an accurate judgment as to the actual injury sustained by the stock, and the consequent depreciation in their value.

As to the second point, if we admit that it was not shown that the city of Benicia, or the supervisors of Contra Costa, had power to grant a ferry-license, or that -defendant had ever applied for or received a ferry-license, we cannot see how the defendants were injured by the admission of the evidence.

It was proven, that defendants held themselves but as piiblic ferrymen, and were accustomed to convey persons and'property across the straits, for hire; arid, so far as the rights of.pláiutiffs were concerned, it was immaterial whether or' not they were duly authorized to run such, ferry. If they were assuming to act as ferrymen, without license, they could not take advantage of their own wrong to avoid the responsibility which ..attached to their calling^-"'

The mot . A for a nonsuit was based upon a variance between the allegations of the complaint, and the evidence as to the ownership of the cattle. We think the variance was not fatal. The complaint charged that Polk was the owner of the cattle, whilst the evidence showed that they were owned jointly by Polk and Hensley. Polk was in the actual possession of the cattle at the time of the injury, and was entitled to maintain an action for any injury to them while in his possession.