Bell v. Leslie

• Decision Date: 08 February 1887
• Citation: 24 Mo.App. 661
• Parties: B. K. BELL, Respondent, v. WILLIAM LESLIE, Appellant.
• Court: Kansas Court of Appeals

24 Mo.App. 661

B. K. BELL, Respondent, v. WILLIAM LESLIE, Appellant.

Court of Appeals of Missouri, Kansas City.

February 8, 1887

APPEAL from Chariton Circuit Court, HON. C. HAMMOND, Special Judge.

Reversed.

Statement of case by the court.

This is an action to recover damages for injuries inflicted on plaintiff's race horse, " Jim Keyte," by a race horse, " Mollie Hubbard," the property of defendant, on the race track at the fair ground at Keytesville. The petition was in two counts. The first count alleged that the defendant was, on October 4, 1883, the owner and in possession of the mare, " Mollie Hubbard" that she " was of an ungovernable, vicious, and dangerous disposition, and was in the habit of running away," all of which facts the defendant well knew " that plaintiff had properly and rightfully caused his horse, ‘ Jim Keyte,’ to be on the said track on said day; that while said horse was on said track, the defendant knowing the dangerous disposition of his said mare wrongfully caused or suffered his servants and employes having said mare in charge, to take her on the track where the plaintiff's horse was; that said mare, in accordance with her said disposition as known to defendant, immediately became vicious and unruly, and ran into and against plaintiff's horse at full speed, striking said horse on the hind leg, thereby breaking the same," etc.

The second count was the same as the first count, with the exception, that the second count alleged " that the rider in charge of said mare for defendant, by reason of negligence and want of ordinary care on his, the rider's part, caused or permitted defendant's mare to run into and against plaintiff's horse," etc.

The answer was a general denial. The evidence showed that the plaintiff's horse was injured by being run into by the defendant's mare while they were both rightfully on the race track, mentioned in the petition. As to what caused the defendant's mare to run only two witnesses testified. The plaintiff testified: " As the mare came around, and about opposite the gate where the horses are taken in upon the track, Meyers stopped her and seemed to be tying a knot in the bridle rein, when she suddenly took a start at great speed around toward the ticket office and in the direction of my horse." Meyers, the rider of the mare, testified: " I had put the mare around the track once in a walk, with ‘ Roan Charlie.’ Just as we got to the gate at the south end of the track where the stock is brought upon the track, a dog took after a loose mule, which started to run up behind us, and some one hallooed. We were near the starting post at the time, and the mare started to run."

As to the manner in which the collision took place the same two witnesses alone testified. The plaintiff said, after having made statement already quoted: " He" (Meyers), " sat very low on the mare, nearly laying down, and sawed the bit in her mouth as if he did not care a cent what she did. She ran against my horse and broke its leg, and I killed him." Meyers, after stating that the mare started to run, said: " It was a down grade in front of me. I hallooed, ‘ Ho!’ to the mare, and begun sawing the bit in her mouth to stop her. There were a dozen horses on the track, some horses near the ticket stand ahead of me, and I called out, ‘ clear the track!’ Bell's horse was some seventy-five yards further up the track, and his rider, instead of going straight ahead on the track, as he should, he turned him to the right, with his head towards the fence, which brought his rump square into the track and across it. I tried to miss his horse, but the mare's right shoulder hit his rump and knocked him over, she nearly falling, too."

The defendant was the owner of the mare. The only witnesses who testified as to who had the possession and control of the mare at the time of the accident were Meyers, the rider, and the defendant. Meyers testified: " I was exercising, training and managing the mare, ‘ Mollie Hubbard,’ at the time, for Jot Creson, of Randolph county." The defendant said: " About three or four months before this time I had let Mr. Jot Creson have ‘ Mollie Hubbard,’ for her racing qualities, till the fall fairs were over. He had my permission to use the mare in all respects as if she had belonged to him. I had no control of her whatever. Creson paid for her keeping, training, and transportation. I gave him the privilege, and authorized him to take her when and use her as he pleased. At the date of the injury to Bell's horse she was in Creson's possession and under his control and management."

As to the defendant's mare being vicious, the evidence was as follows:

The plaintiff testified: " I know ‘ Mollie Hubbard; ’ had seen her on the track. From what I had seen of her she was unruly." James Guthridge, the only other witness for the plaintiff, testified: " Have seen ‘ Mollie Hubbard’ run two or three races. She was ridden by a boy. There was no trouble with her except to get her started. I think she had been trained this way to get the best of the start before beginning to run." Said witness also said, prior to the statements just quoted: " Do not know that she was vicious, or in habit of running away. She was stubborn about starting in a race; would pull back, and get the wrong way; unless she got the advantage in the start, was hard to start." The defendant stated: " She was not vicious or dangerous; was perfectly gentle; my boys ride her, and my wife drives her; had not heard of her running away before the accident to plaintiff's horse. I had known her six or eight years. In starting in a race, she would refuse to go, would pull back or go the wrong way until she got the best of it." Meyers testified: " I do not regard " Mollie Hubbard' as a dangerous or vicious mare. She had started to run with me once before, but I soon got her under control. Have seen her run a number of races. Yes, sir, I am a brother-in-law to William Leslie. The mare was not vicious, but was kind and gentle." Robert Patterson testified: " I knew the mare, ‘ Mollie Hubbard,’ and she was a gentle animal; when running she would be bad to start until she got the best of it. Saw her run several races, was generally ridden by a small boy." There was no other evidence on this question. There was absolutely no evidence tending to show that the defendant knew that his mare had run away, or was predisposed to do so. The only evidence on that question was the statement made by Meyers at the close of his testimony: " Do not know that Leslie knew of her previous attempt a few days before to run away."

From a judgment in favor of plaintiff, the defendant has appealed.

SAM C. MAJOR and KINLEY & WALLACE, for the appellant.

I. The first instruction for plaintiff was wrong. It directed the jury to find a verdict for plaintiff if they found that defendant's mare was in the habit of running away, and was in the possession and under the sole control of another person than defendant at the time the injury was done. A person other than the owner having in control and being in possession of a vicious animal is liable for any damage caused by it in the exercise of its vicious habits. Bard v. Yohn, 25 Pa. 482; Mitchell v. Cressweller, 13 Com. B. 237; Oxford v. Peter, 28 Ill. 434; Barnum v. Vandusen, 16 Conn. 200; Ward v. Brown, 64 Ill. 307; Rossell v. Cottom, 31 Pa.St. 525.

II. There being no evidence whatever that the defendant wantonly or recklessly injured the horse of plaintiff, and it being conceded that both parties had equal rights upon the track at the time of the accident, plaintiff was not entitled to recover, and instruction number five should have been given on behalf of defendant. Meeks' Damnum Absque Injuria, sect. 120, and authorities there cited.

III. The verdict should have been set aside and a new trial granted, because there was no evidence even tending to show that defendant had any knowledge that the mare, " Mollie Hubbard," would run away, or was in the habit of running away, in fact there was no scienter proven by plaintiff. In an action to recover for injury from vicious habits of domestic animals the scienter on part of defendant must be shown, to entitle plaintiff to recover.

IV. The vicious propensities of domestic animals, for which their owners may be held responsible in damages, if any one is injured thereby, are such habits that lead them to attack mankind, or other animals; certainly running by a race horse, until now, was never before claimed to be a vicious habit.

V. The motion for a new trial should have been granted for misbehavior on the part of the jury. For each juror to name a certain sum and aggregate the whole and divide by twelve, is an improper mode of making a verdict. Sawyer v. Railroad, 37 Mo. 240; Philips v. Stewart, 69 Mo. 149; Ellidge v. Todd, 1 Humphrey (Tenn.) 43; 1 Am. Decisions, 38, note.

VI. While a juror may not impeach the verdict, yet if it can be proven by other means, the verdict should be set aside. Prate v. Coffman, 31 Mo. 71.

A. W. MULLINS with R. W. GOLDSBY, for the respondent.

I. The court did not err in giving plaintiff's first instruction. Besides it is too late for defendant to complain of it. His own instructions presented the case on the same theory. Holmes v. Braidwood, 82 Mo. 610; Walker v. Owen, 79 Mo. 563; Whetstone v. Shaw, 70 Mo. 575; Nance v. Metcalf, 19 Mo.App. 183; Loomis v. Railroad, 17 Mo.App. 340.

II. Defendant made Creson his agent with respect to the care and use of the mare, and defendant is liable for any damages done by the mare, while Creson was in charge of her. And if Creson at the time of the accident knew of the habits of the mare, he, too, was liable. Cooley on Torts, 684; 2 Hilliard Torts (3 Ed.) p. 292, sect. 9; Thompson on Neg....