Freeman v. Foreman

• Decision Date: 07 February 1910
• Citation: 141 Mo. App. 359,125 S.W. 524
• Parties: FREEMAN v. FOREMAN et al.
• Court: Missouri Court of Appeals

125 S.W. 524

141 Mo. App. 359

FREEMAN v. FOREMAN et al.

Springfield Court of Appeals. Missouri.

February 7, 1910.

1. APPEAL AND ERROR (§ 1011)—FINDINGS— CONCLUSIVENESS.

A finding by the court on conflicting evidence and supported by substantial evidence will not be disturbed.

2. APPEAL AND ERROR (§ 1071)—TRIAL BY COURT—DECLARATIONS OF LAW.

Where, on a trial to the court, it appears from all the declarations of law that the court tried the case on a correct theory, the fact that the declarations were in some respects erroneous did not require a reversal.

3. LIVERY STABLE KEEPERS (§ 6)— CARE REQUIRED OF BAILEE.

A livery stable keeper need exercise only ordinary care in the care of a horse instrusted to him for keeping for hire.

4. BAILMENT (§ 30) — ACTION BY BAILOR — PLEADING—SUFFICIENCY.

A bailor suing the bailee need only allege the contract of bailment and his compliance therewith, and a failure of the bailee on demand to return the property, or its return in an injured condition, and it is not necessary to plead negligence of the bailee.

5. NEGLIGENCE (§ 121) — BURDEN OF PROOF.

In a case grounded on negligence, the burden of proving negligence is on him who alleges it.

6. BAILMENT (§ 31) — NEGLIGENCE — BURDEN OF PROOF.

A bailor who grounds his action against the bailee in negligence waives his rights under the usual mode of procedure in bailment cases, and has the burden of proving negligence.

7. NEGLIGENCE (§ 121)—RES IPSA LOQUITUR.

Where the charge of negligence is a general one, and plaintiff shows that the injury complained of occurred under such circumstances that it may be reasonably inferred that, if ordinary care had been used by defendant, the injury would not have resulted, he thereby makes a prima facie case, and casts on defendant the burden of proving due care.

8. LIVERY STABLE KEEPERS (§ 7) — NEGLIGENCE —EVIDENCE.

Where one suing a livery stable keeper for injuries to a horse intrusted to his keeping for hire alleged negligence in general terms, and proved the bailment and the injury to the horse while in the care of the stable keeper, the negligence of the latter was prima facie shown under the doctrine of res ipsa loquitur, though there was also evidence of specific acts of negligence not clearly showing how the injury was inflicted.

9. LIVERY STABLE KEEPERS (§ 7) — NEGLIGENCE —EVIDENCE.

The presumption of the negligence of a livery stable keeper arising from the delivery of a horse to him for keeping for hire and of the injury to the horse while in his custody does not apply to any injury occasioned by the unskillful treatment of the horse by the owner after the initial injury was inflicted, and, if the owner's treatment increased the effect of the injury, the same would reduce the damages, but not be a complete defense.

10. APPEAL AND ERROR (§ 931) — REVIEW — PRESUMPTIONS.

Where, in an action tried by the court, no declaration of law was asked on a question of fact, the court on appeal must assume that the court below decided it correctly.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by A. B. Freeman against W. H. Foreman and another. From a judgment for plaintiff, defendants appeal. Affirmed.

The defendants were livery stable keepers in the city of Joplin, Jasper county, and plaintiff intrusted to their keeping for hire a mare owned by him. This animal received an injury in one leg while in the care of defendants. Plaintiff sued for damages for such injury before a justice of the peace where judgment went for defendant. Plaintiff appealed, and on trial in the circuit court recovered judgment, and defendants have appealed to this court, assigning as error the refusal of the court to sustain a demurrer to the testimony and error in the declarations of law. The complaint upon which this action is based sets up the bailment of the mare to the defendants, and then alleges that "while she was in their keeping and care they carelessly and negligently, by their agents, servants, and employés, injured or suffered her to be injured in and about the hind legs"; then alleges damages, and prays for judgment. In the circuit court a jury was waived and trial had by the court.

Walden & Andrews, for appellants. C. V. Buckley and R. M. Sheppard, for respondent.

COX, J. (after stating the facts as above).

As to the refusal of the court to sustain a demurrer to the testimony, it will be sufficient to say without setting out the testimony in full that there was testimony tending to show that the animal was injured while in the care of defendants, and also some testimony tending to show negligence upon their part. There was also evidence tending to contradict the testimony as to negligence and to show that defendants exercised proper care in the keeping of the animal. This being true, we will not disturb the finding of the lower court upon that question.

As to the assignment of error in the declarations of law, it will be noted that, where a trial is had before the court without a jury, the only purpose which declarations of law serve is to show the theory upon which the court tried the case. Hence, if it appear on an examination of all the declarations of law that the court tried the case upon a correct theory, then, even though the declarations as given may be in some respects erroneous or subject to criticism, that fact will not result in a reversal of the judgment.

In this case two instructions were given on behalf of plaintiff, and eight on behalf of defendants, and, without setting them out at length, we conclude from an examination of them that the court tried the case...