GRAVES, J.
This case involves the magnificent sum of five dollars. It reaches ns under a certification from the Springfield Court of Appeals. We are enlightened by three well written opinions from the three respective members of that court. The facts we shall state for ourselves. Plaintiff having had one wheel of an old buggy somewhat demolished by coming in contact with a mule belonging- to defendant, but being led by an employee of defendant, sought damages therefor before a justice of the peace, in October, 1909. He thus challenges his enemy in an amended petition filed before such justice:
“Plaintiff for an amended petition states that on the 2d day of October, 1909, at the county and State of Missouri, he was driving* a horse and buggy along Walnut street, between South and Jefferson streets, in the city of Spring-field, on the right hand side of the street; that defendant’s agent and employee, on the aforesaid date, was leading a wild and unruly mule along the aforesaid street in such a careless and negli[356]*356gent manner as to permit said mnle to ran into and against plaintiff’s said buggy, thereby injuring and breaking the wheel and axle of said buggy and damaging the same to the extent of five dollars.
“Plaintiff further states, that at the time of the accident aforesaid, defendant’s agent and employee leading said mule was acting in the scope of his employment.
“Wherefore plaintiff prays judgment in the sum of five dollars.”
As we gather the facts plaintiff has been successful throughout from the justice’s court up to the present. In the Court of Appeals his success was by a divided court. In this court he stands behind the fortification erected by his judgment, and submits his case here without brief. A yellow slip of paper found in the files here bears the ominous inscription, “The Celebrated Mule Case,” and nothing more. Why we were thus enlightened by this otherwise silent monitor we know not. It at least admonishes to look well to the facts. Plaintiff and his brother and father-in-law were driving east on Walnut street in Springfield, Missouri, in plaintiff’s buggy, and at a point where there was some digging in the street and some brick piled up in the street, met defendant’s employee, James S. Parker, who was riding one mule and leading another; both mules were of good size, and the one being led was gray in color, if the color is material. According to plaintiff’s evidence the halter strap by which the mule was led was five or six feet long — two witnesses say five, and another says five or six feet. It was being held near the end. In passing the bricks the mule shied across to the buggy and got his hind leg between the shaft and the wheel and in extricating itself damaged the wheel. Plaintiff’s theory of the case is made to appear by the following evidence. Plaintiff himself says:
[357]*357“Q. Do you know the customary manner of managing mules when they are being led over the street? A. I don’t know what lots of people do, but I know what I do with them. I would neck them together so they could not spread all over the street.
“Q. How would be a proper way to handle them? A. That would be a proper way to handle them I think, would be to neck them together when you go through a crowded place like that.
“Q. How was he leading this mule? A. At the end of the halter rope.
“Q. How long was that rope? A. About five feet, the best .1 could tell. ’ ’
The brother said:
“Q. Tell the court the proper manner to handle them? A. In a place, where you are likely to have any difficulty with mules you neck them right up short together.
‘ ‘ Q. Can they be handled at all by giving five feet of rein? A. No man can handle a mule of any size by a halter rein. If you are handling a mule you have got to halter him up close to you.”
The father-in-law said:
“It was his hind leg — got it in between the wheel and shaft. I said the front wheel. That is all I know about it. I didn’t see any misbehavior in the mule until we got right up to them. He shied at something. I don’t know what it was. There was-a lot of brick on the north side and some dirt thrown up there. If there were any red lights there they were not lit up, because it wasn’t dark enough. I quit work that day at six o’clock. I had not taken any whiskey. I don’t drink. We were sitting in the seat and he was sitting on our knees. This did not happen very suddenly. It didn’t take but a few minutes, but the mule got the best of us. It was somewhere about a minute in happening. I did not see any misbehavior in the man who was riding the other mule, only he couldn’t handle the [358]*358mule, is all. He didn’t have them up so he could handle them. I am not very much of a mule-handler. He could have tied them up closer than he did. I don’t think he was tied up at all. I think he was leading the mule at the end of the rope.”
There is no evidence in the case to the effect that the mule in question was wild and unruly, or that defendant had any knowledge of the animal being unruly or wild, if it was so, in fact. Defendant said that the mule was well-broke, but a little high-lifed, and this is as far as the evidence in behalf of the defendant adds to plaintiff’s case. Defendant demurred to the evidence at the close of the plaintiff’s case and again at the close of the whole case. Plaintiff’s right to recover under the pleadings and under the evidence is thus squarely presented.
Pleading in Justice’s Court: Allegations Must be Proved. I. There are at least two reasons why this judgment should be reversed. It is true that in justices’ courts the same strict formalities of pleadings are not required as in the circuit court, but it is further true that, if the plaintiff elects to plead in strictness in such court, he is bound by his pleadings there as he would be elsewhere. By this we mean, if he is suing in tort, and specifically states the negligence upon which he relies to recover, he must recover for that negligence and none other. In the case at bar, what is the negligence upon which the plaintiff seeks to recover ? Is it the negligent handling of a mule, an ordinary average mule, or is it the negligent handling of a wild and unruly mule? And if the latter, has there been a case made? This is the first proposition in the case. We have set out in full the plaintiff’s statement of his cause of action. A reading of that statement shows that the plaintiff was undertaking to charge the careless and negligent handling of “a wild and unruly mule.” Counsel for plaintiff, [359]*359who drew and signed the petition for plaintiff, recog-' nized that what would be a negligent handling of a wild and unruly mule might not be a negligent handling of an ordinary mule. He canvassed his facts and then charged that defendant was guilty of a negligent handling of “ a wild and unruly mule. ’ ’ This was the case defendant was called upon to meet. When, therefore, it was made to appear that the defendant had not handled “a wild and unruly mule” at all, the case stated had failed. Under the pleadings the defendant was not required to come prepared to meet the question of a negligent handling of an ordinary mule, but on the other hand the plaintiff if permitted to recover, must recover upon the case made by his pleadings.
Free access — add to your briefcase to read the full text and ask questions with AI
GRAVES, J.
This case involves the magnificent sum of five dollars. It reaches ns under a certification from the Springfield Court of Appeals. We are enlightened by three well written opinions from the three respective members of that court. The facts we shall state for ourselves. Plaintiff having had one wheel of an old buggy somewhat demolished by coming in contact with a mule belonging- to defendant, but being led by an employee of defendant, sought damages therefor before a justice of the peace, in October, 1909. He thus challenges his enemy in an amended petition filed before such justice:
“Plaintiff for an amended petition states that on the 2d day of October, 1909, at the county and State of Missouri, he was driving* a horse and buggy along Walnut street, between South and Jefferson streets, in the city of Spring-field, on the right hand side of the street; that defendant’s agent and employee, on the aforesaid date, was leading a wild and unruly mule along the aforesaid street in such a careless and negli[356]*356gent manner as to permit said mnle to ran into and against plaintiff’s said buggy, thereby injuring and breaking the wheel and axle of said buggy and damaging the same to the extent of five dollars.
“Plaintiff further states, that at the time of the accident aforesaid, defendant’s agent and employee leading said mule was acting in the scope of his employment.
“Wherefore plaintiff prays judgment in the sum of five dollars.”
As we gather the facts plaintiff has been successful throughout from the justice’s court up to the present. In the Court of Appeals his success was by a divided court. In this court he stands behind the fortification erected by his judgment, and submits his case here without brief. A yellow slip of paper found in the files here bears the ominous inscription, “The Celebrated Mule Case,” and nothing more. Why we were thus enlightened by this otherwise silent monitor we know not. It at least admonishes to look well to the facts. Plaintiff and his brother and father-in-law were driving east on Walnut street in Springfield, Missouri, in plaintiff’s buggy, and at a point where there was some digging in the street and some brick piled up in the street, met defendant’s employee, James S. Parker, who was riding one mule and leading another; both mules were of good size, and the one being led was gray in color, if the color is material. According to plaintiff’s evidence the halter strap by which the mule was led was five or six feet long — two witnesses say five, and another says five or six feet. It was being held near the end. In passing the bricks the mule shied across to the buggy and got his hind leg between the shaft and the wheel and in extricating itself damaged the wheel. Plaintiff’s theory of the case is made to appear by the following evidence. Plaintiff himself says:
[357]*357“Q. Do you know the customary manner of managing mules when they are being led over the street? A. I don’t know what lots of people do, but I know what I do with them. I would neck them together so they could not spread all over the street.
“Q. How would be a proper way to handle them? A. That would be a proper way to handle them I think, would be to neck them together when you go through a crowded place like that.
“Q. How was he leading this mule? A. At the end of the halter rope.
“Q. How long was that rope? A. About five feet, the best .1 could tell. ’ ’
The brother said:
“Q. Tell the court the proper manner to handle them? A. In a place, where you are likely to have any difficulty with mules you neck them right up short together.
‘ ‘ Q. Can they be handled at all by giving five feet of rein? A. No man can handle a mule of any size by a halter rein. If you are handling a mule you have got to halter him up close to you.”
The father-in-law said:
“It was his hind leg — got it in between the wheel and shaft. I said the front wheel. That is all I know about it. I didn’t see any misbehavior in the mule until we got right up to them. He shied at something. I don’t know what it was. There was-a lot of brick on the north side and some dirt thrown up there. If there were any red lights there they were not lit up, because it wasn’t dark enough. I quit work that day at six o’clock. I had not taken any whiskey. I don’t drink. We were sitting in the seat and he was sitting on our knees. This did not happen very suddenly. It didn’t take but a few minutes, but the mule got the best of us. It was somewhere about a minute in happening. I did not see any misbehavior in the man who was riding the other mule, only he couldn’t handle the [358]*358mule, is all. He didn’t have them up so he could handle them. I am not very much of a mule-handler. He could have tied them up closer than he did. I don’t think he was tied up at all. I think he was leading the mule at the end of the rope.”
There is no evidence in the case to the effect that the mule in question was wild and unruly, or that defendant had any knowledge of the animal being unruly or wild, if it was so, in fact. Defendant said that the mule was well-broke, but a little high-lifed, and this is as far as the evidence in behalf of the defendant adds to plaintiff’s case. Defendant demurred to the evidence at the close of the plaintiff’s case and again at the close of the whole case. Plaintiff’s right to recover under the pleadings and under the evidence is thus squarely presented.
Pleading in Justice’s Court: Allegations Must be Proved. I. There are at least two reasons why this judgment should be reversed. It is true that in justices’ courts the same strict formalities of pleadings are not required as in the circuit court, but it is further true that, if the plaintiff elects to plead in strictness in such court, he is bound by his pleadings there as he would be elsewhere. By this we mean, if he is suing in tort, and specifically states the negligence upon which he relies to recover, he must recover for that negligence and none other. In the case at bar, what is the negligence upon which the plaintiff seeks to recover ? Is it the negligent handling of a mule, an ordinary average mule, or is it the negligent handling of a wild and unruly mule? And if the latter, has there been a case made? This is the first proposition in the case. We have set out in full the plaintiff’s statement of his cause of action. A reading of that statement shows that the plaintiff was undertaking to charge the careless and negligent handling of “a wild and unruly mule.” Counsel for plaintiff, [359]*359who drew and signed the petition for plaintiff, recog-' nized that what would be a negligent handling of a wild and unruly mule might not be a negligent handling of an ordinary mule. He canvassed his facts and then charged that defendant was guilty of a negligent handling of “ a wild and unruly mule. ’ ’ This was the case defendant was called upon to meet. When, therefore, it was made to appear that the defendant had not handled “a wild and unruly mule” at all, the case stated had failed. Under the pleadings the defendant was not required to come prepared to meet the question of a negligent handling of an ordinary mule, but on the other hand the plaintiff if permitted to recover, must recover upon the case made by his pleadings. Under the case pleaded, his proof failed, and the court should have directed a verdict for the defendant.
II. But even grant it that the petition in this case is in such form and substance as to permit a recovery upon the proof of a negligent handling of a mule, without reference to the “wild and unruly” characteristic of the animal, as two of the judges of the Court of Appeals thought, yet should there have been a recovery under the evidence? We think not.
Plaintiff’s theory is that the leading of a mule, somewhat “high-lifed” or high spirited, upon a street, where a portion of the street was torn up by digging, and in which was piled bricks in a long continuous row or pile, by a halter, with a rope five feet long, was negligence. There is no question but that there was ample space in the obstructed street for the same passage of both the buggy and the mules. It is true that plaintiff’s witnesses say that the mules should have been haltered together or something of that kind. This is their expert view of the situation, but we hardly think that the question is one calling for opinion evidence, and although such was admitted without objection, the case here is not changed by reason of that fact. [St. [360]*360Louis v. Roche, 128 Mo. 541; Boggs v. Laundry Co., 171 Mo. 282; Thompson on Trials, sec. 691.]
The use of a halter with a rein of five or six feet • for the leading of both horses and mules upon the public highway is one of such long standing that expert testimony has no place in such a case. Not'only so, but such a leading is not negligence, at least it is not negligence unless some vicious propensity of the animal be pleaded and shown. In this case we have no vicious propensity pleaded or proven. It is true that the petition charges that the mule was “wild and unruly” (not strictly a vicious propensity), but even that was not shown. Without some proof of vicious propensities, the trial court should have said that the mere proof that the defendant led the mule by a halter rein five or six feet long was no evidence of negligence upon his part. To hold that such conduct amounted to negligence is to overthrow all common knowledge as to the handling of animals upon the public highways. Courts must not blind themselves to common knowledge. The proof made in this case failed to show negligence in any degree, and the judgment from start to finish should have been for defendant. [Eddy v. Union R. Co., 56 Atl. 677.]
We regret to feel constrained to thus abruptly terminate “The Celebrated Mule Case,” but it should have been so determined long since. Let the judgment of the circuit court be simply reversed so that there will be an end to the controversy.
All concur; Lamm, J., in separate opinion.