Dalton v. Redemeyer

• Decision Date: 30 December 1910
• Citation: 154 Mo. App. 190,133 S.W. 133
• Parties: DALTON v. REDEMEYER.
• Court: Missouri Court of Appeals

133 S.W. 133

154 Mo. A. 190

DALTON v. REDEMEYER.

St. Louis Court of Appeals. Missouri.

December 30, 1910.

Rehearing Denied January 11, 1911.

1. ANIMALS (§ 27) — ACTION BY BAILOR — BURDEN OF PROOF.

Plaintiff hired four horses to defendant, who was to return them in as good condition as when delivered, and to pay a reasonable sum for their hire. Held, that an instruction, in an action for damages to the horses while in defendant's hands, that, if defendant received the horses in good condition, the burden of proof was on defendant to show by a preponderance of evidence that the damage, if any occurred, was not through the fault of defendant, was proper.

2. ANIMALS (§ 27)—LIABILITY OF BAILEE— DAMAGES.

Where plaintiff hires horses to defendant to be returned in good condition to plaintiff, defendant was responsible to plaintiff for proper care and safe return, in the absence of any contract to the contrary, and for any outlay caused plaintiff by reason of the condition in which they were returned.

3. TRIAL (§§ 260, 199) — INSTRUCTIONS — REQUESTS—INVADING PROVINCE OF JURY.

In an action for damages to horses hired to defendant, an instruction requested by defendant that the burden of proof rests on plaintiff, and before the jury can find a verdict

for plaintiff he must prove by a preponderance of the evidence all of the facts necessary to entitle him to recover as against defendant, was properly refused both because an instruction placing the burden of proving that the damages did not occur through the fault of defendant on defendant had been given to the jury, and because the requested instruction left to the jury to determine what were the facts necessary to be proved.

4. APPEAL AND ERROR (§ 761)—BRIEFS—CITATION OF AUTHORITIES.

A citation by an appellant to various pages and paragraphs of a digest named is in violation of rule 19 of the St. Louis Court of Appeals (121 S. W. vii), providing that, in citing authorities in support of any proposition, it shall be the duty of counsel to give the names of the principal parties to any case cited from any report of adjudged cases, as well as the number of the volume and page where the same will be found.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by Henry C. Dalton against William H. Redemeyer. Judgment for plaintiff, and the court sustained a motion for a new trial, and plaintiff appeals. Reversed, with directions to enter judgment on the verdict for plaintiff.

R. B. Haughton, for appellant. Jeptha D. Howe and Alphonso Howe, for respondent.

REYNOLDS, P. J.

This action was brought by plaintiff, appellant here, against respondent, Redemeyer, and the Prendergast Contracting Company. It is averred in the petition that plaintiff is "the owner of four certain horses, and that on the 18th of March, 1907, he hired and delivered them to defendant in good order and condition, under a contract, by the terms of which, partly expressed and partly implied by law," defendants were to have the use of the horses and were obliged to return them to plaintiff in as good order and condition as they were at the time they were so delivered to defendants and to pay plaintiff a reasonable sum for their hire and use; that defendants accepted the horses and returned them to plaintiff on the 24th of March, 1907, in a greatly weakened and injured condition; that, as a result of this condition, on their return, one of the horses died shortly thereafter, and the other three had not yet recovered, although carefully treated by plaintiff; that the injuries to them were permanent. The damages claimed for the value of the horse which died, for expenses in treating the others, for loss of their services, and other items are set out in detail, and judgment demanded for $600 and costs. The answer was a specific denial of all matters set out in the petition. The trial was before the court and a jury. Plaintiff's evidence tended to support the allegations of his petition; that offered by defendant contradicting it. During the progress of the trial, in consequence of a ruling of the court that there could be no recovery as against the Prendergast Contracting Company, plaintiff took a nonsuit as to that defendant, with leave to move to set it aside, and the case proceeded as against the defendant Redemeyer. At the conclusion of the testimony, the court gave several instructions asked by plaintiff; among others, one to the effect that, if the jury believed from the evidence that defendant received the four horses in good condition, the burden of proof was then on defendant to show by a preponderance or greater weight of the evidence that the damage, if any occurred, was not through the fault of defendant. Objection was duly made and exceptions saved to the giving of this. At the instance of the defendant Redemeyer, and of its own motion, the court gave various instructions. The defendant asked this instruction, which the court refused to give: "The burden of proof rests upon the plaintiff, and, before you can find a verdict in favor of plaintiff, the plaintiff must...