McAlister v. Irvine

Missouri Court of Appeals

McAlister v. Irvine

69 Mo. App. 442, 1897 Mo. App. LEXIS 74

CourtMissouri Court of Appeals

DecidedFebruary 23, 1897

StatusPublished

Cited by1 cases

This text of 69 Mo. App. 442 (McAlister v. Irvine) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McAlister v. Irvine, 69 Mo. App. 442, 1897 Mo. App. LEXIS 74 (Mo. Ct. App. 1897).

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Opinion

Bond, J.

Plaintiff sued before a justice for $75 as damages for the death of his horse, alleged to have been caused on the fourteenth of September, 1895, by [443]*443overdriving and beating on the part of the hirer. Plaintiff had judgment before the justice and again on defendant’s appeal in the circuit court, whereupon defendant has' appealed to this court.

On the trial plaintiff adduced evidence tending to prove the allegations of his statement, and defendant gave evidence tending to establish his defenses that the death of the horse was not caused by negligent driving or beating, but by a stomach disease. The court submitted the issues to .the jury in instructions of its own motion, and one given at defendant’s request.

Damages: evidence, competency of. It is complained that the court erred in admitting plaintiff’s testimony as to the condition of the other' horse, which, together with the one sued for, constituted the team hired to defendant. This evidence was not improper under the facts admitted by defendant in this record. He states that , the two horses were driven by him on the day in question, about forty miles, carrying a buggy occupied by two persons. As the horses were driven with this load such a distance on a hot day, September 14, 1895, the condition of onetecded in some degree to show the character of the driving to which both had been subjected.

Instruction: verdict. It is further complained that instruction number 1, given of the court’s motion, does not limit the amount of plaintiff’s recovery, except to the “reasonable worth of the horse on the market.” This instruetion would have been free from this objection if it had'also stated that plaintiff’s recovery could not exceed the sum claimed in his statement. This omission could not have prejudiced the defendant, for although the damages were laid at $75 in the statement, the verdict was only for $60. An examination of the instructions given discloses that they directed the jury to find for defendant, if they be[444]*444lieved from the evidence either that the horse was driven" as an ordinarily prudent man would drive a livery horse,” or that his death was caused by disease. It thus appears that none of the defenses made in this case were ignored.

Instruction. Neither did the court err in refusing thereafter an instruction requested by defendant to the effect that the fact alone of the death of the horse on the day which he was driven would not justify a verdict for plaintiff. This instruction improperly singled out and commented on an isolated fact.

Finding no reversible error in the judgment, it will be affirmed.

All concur.

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Bond, J.

Plaintiff sued before a justice for $75 as damages for the death of his horse, alleged to have been caused on the fourteenth of September, 1895, by [443]*443overdriving and beating on the part of the hirer. Plaintiff had judgment before the justice and again on defendant’s appeal in the circuit court, whereupon defendant has' appealed to this court.

On the trial plaintiff adduced evidence tending to prove the allegations of his statement, and defendant gave evidence tending to establish his defenses that the death of the horse was not caused by negligent driving or beating, but by a stomach disease. The court submitted the issues to .the jury in instructions of its own motion, and one given at defendant’s request.

Damages: evidence, competency of. It is complained that the court erred in admitting plaintiff’s testimony as to the condition of the other' horse, which, together with the one sued for, constituted the team hired to defendant. This evidence was not improper under the facts admitted by defendant in this record. He states that , the two horses were driven by him on the day in question, about forty miles, carrying a buggy occupied by two persons. As the horses were driven with this load such a distance on a hot day, September 14, 1895, the condition of onetecded in some degree to show the character of the driving to which both had been subjected.

Instruction: verdict. It is further complained that instruction number 1, given of the court’s motion, does not limit the amount of plaintiff’s recovery, except to the “reasonable worth of the horse on the market.” This instruetion would have been free from this objection if it had'also stated that plaintiff’s recovery could not exceed the sum claimed in his statement. This omission could not have prejudiced the defendant, for although the damages were laid at $75 in the statement, the verdict was only for $60. An examination of the instructions given discloses that they directed the jury to find for defendant, if they be[444]*444lieved from the evidence either that the horse was driven" as an ordinarily prudent man would drive a livery horse,” or that his death was caused by disease. It thus appears that none of the defenses made in this case were ignored.

Instruction. Neither did the court err in refusing thereafter an instruction requested by defendant to the effect that the fact alone of the death of the horse on the day which he was driven would not justify a verdict for plaintiff. This instruction improperly singled out and commented on an isolated fact.

Finding no reversible error in the judgment, it will be affirmed.

All concur.

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69 Mo. App. 442, 1897 Mo. App. LEXIS 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcalister-v-irvine-moctapp-1897.

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