Fox v. Young

• Decision Date: 24 May 1886
• Citation: 22 Mo.App. 386
• Parties: THOMAS FOX, Respondent, v. N. S. YOUNG ET AL., Appellants.
• Court: Kansas Court of Appeals

22 Mo.App. 386

THOMAS FOX, Respondent, v. N. S. YOUNG ET AL., Appellants.

Court of Appeals of Missouri, Kansas City.

May 24, 1886

APPEAL from Livingston Circuit Court, HON. JAMES M. DAVIS, Judge.

Affirmed.

The case is stated in the opinion.

FRANK SHEETZ, for the appellants.

I. There was no evidence of any consideration for the hiring nor of the value of the animal killed. And the court erred in overruling demurrer to evidence.

II. The evidence made the driver the servant of plaintiff, and plaintiff must bear the loss. Barry v. St. Louis, 17 Mo. 121; Morgan v. Bowman, 22 Mo. 538.

DAVIS & BROADDUS, for the respondent.

I. Grounds of objection, not set forth in the motion for new trial, will not be heard in the appellate court. Carver v. Thornhill, 53 Mo. 283; Brady v. Connelly, 52 Mo. 19.

II. The cases of Barry v. St. Louis (17 Mo. 121), and Railroad v. Norwood (52 Am. Rep. 191), have no application to this case, because the injury was occasioned by the violation of the agreement. The cases cited by appellants are relied on to support respondent's judgment.

III. The finding of the court is conclusive, when both the law and facts are submitted to the court. Hamilton v Boggess, 63 Mo. 233,

PHILIPS P. J.

This is an action to recover the value of a mule, the property of plaintiff, alleged to have been killed through the wrong of defendant. The petition alleges that plaintiff hired to defendant a pair of mules to do certain work on a railroad track which defendant was constructing as contractor; that by the express terms of the contract of hiring, the defendant was not to employ said team by working them to a scraper, as this could not be done without danger to them. That defendant, in violation of such agreement, caused the said team to be hitched to a scraper, whereby they became alarmed and ran off, one of them being killed. The value of the mule injured is alleged to be two hundred dollars.

The answer, after tendering the general issue, pleaded that plaintiff hired said team to do general work in the construction of the railroad, and sent along with it his own driver, who had the sole management of the team for plaintiff, as his servant, and while the team was being worked to the scraper, through the carelessness and negligence of the driver, the injury occurred; and that the team was put to said scraper without the knowledge or consent of defendant.

The plaintiff's evidence tended to support the issues on his part, respecting the terms of said hiring, and the manner of the injury. The plaintiff's evidence tended to show that one Slinger, who had charge of the hands, etc., on said work, under the defendant, was present at the time of the contract, and heard and understood the same; that he forced the driver of the team, furnished by plaintiff, to work the team to the scraper against the protests of the driver, and that the mule took fright at the scraper without the fault of the driver.

The defendant's evidence tended to show that the contract of hiring was without the limitation claimed by plaintiff; and that the driver stepped on a clod and fell over on the scraper and thereby frightened the team.

The court, sitting as a jury, found the issues for the plaintiff, and entered judgment for the sum of one hundred and fifty dollars. Defendant has appealed.

I. The first point made by appellant against the verdict is, that the record fails to show there was any evidence as to the value of the mule. This objection cannot avail the appellant, for the reason that no such ground was urged in the motion for new trial.

This case fitly illustrates the importance of the statutory requirement that " all motions shall be accompanied by a written specification of the reasons upon which they are founded, and no reason, not so specified, shall be urged in support of the motion." While we are not permitted to assume the existence of a fact not shown by the record, when the bill of exceptions sets out what purports to be the evidence, yet, we have no doubt that evidence was given touching the value of the mule, and if there was not, had the defendant, in his motion for new trial, pointed out the omission, as required by the statute, it would have enabled the court to rectify the error in the bill of exceptions without this appeal. The plain and commendable purpose of the statute was to...