Freeman v. Foreman
| Decision Date | 07 February 1910 |
| Parties | A. B. FREEMAN, Respondent, v. W. H. FOREMAN et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. David E. Blair, Judge.
AFFIRMED.
STATEMENT.--The defendants were livery stable keepers in the city of Joplin Jasper county, and plaintiff entrusted 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 employees, 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.
Judgment affirmed.
Walden & Andrews for appellants.
(1) This action, being based upon negligence, it was incumbent upon plaintiffs, in order to hold defendants to prove the negligence, and that the negligence caused the injury. Breen v. Cooperage Co., 50 Mo.App. 212; Slepp v Railroad, 85 Mo. 229; 6 Thomp. Neg. 657. (2) A livery keeper is not an insurer of the horses entrusted to him, and is only bound to use ordinary care with respect to them, and is only liable for loss occurring through his negligence. Crawford v. Cashman, 82 Mo.App. 554; McCarty v Wolfe, 40 Mo. 520. While it is true in a simple case of bailment for hire where the property bailed was delivered to the bailee in good condition, and was lost or damaged when returned, and the plaintiff alleges these facts and proves them, a prima facie right to judgment is established. Dixon v. McDonnell, 92 Mo.App. 479; Wiser v. Chesley, 53 Mo.App. 547; Crawford v. Cashman, 82 Mo.App. 558; Arnot v. Parconier, 14 Mo.App. 431; Cummins v. Mastin, 43 Mo.App. 558. (3) But, where plaintiff alleges the property was lost through defendants' carelessness and negligence, a different rule obtains, for which distinction is shown in a well established line of authorities in this State. McCarthy v. Wolf, 40 Mo. 520; Cummins v. Mastin, 43 Mo.App. 558; Winston v. Taylor, 28 Mo. 86.
C. V. Buckley and R. M. Sheppard for respondent.
(1) When it is shown that a bailee receives stock of any kind, to be kept for hire, in good condition and fails to return them in like condition, a prima facie cause of negligence is made by the plaintiff and it rests on the defendant to exonerate himself from liability. Crawford v. Cashman & Son, 82 Mo.App. 554; Dixon v. McDonald, 92 Mo.App. 479. (2) The allegation of negligence in plaintiff's complaint is in general terms; there is no specific allegation of negligence. Kirkpatrick v. Railroad, 211 Mo. 68.
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 upon the following theory:
1. That plaintiff having alleged negligence in his complaint assumed the burden of proving negligence upon the part of defendants in the care of the horse.
2. That defendants were bound to use ordinary care only in the care of the horse.
3. That while plaintiff was bound, under his pleadings, to prove negligence, yet, in this case, he discharged that burden and made a prima facie case by proof of the bailment and that the horse was injured while in the care of defendants, and by proof of these facts cast upon the defendants the burden to show that they had exercised ordinary care.
As to the first two of these propositions there can be no controversy. The difficulty arises upon the third proposition. There has been some confusion in early decisions in this State upon that question, but the conflict in these decisions is more apparent than real. Attention was first called to this by Judge THOMPSON in the case of Arnot v. Branconier, 14 Mo.App. 431, in which he calls attention to the decision of the Supreme Court in McCarthy v. Wolfe, 40 Mo. 520, in which it is held in a case of bailment that the plaintiff having alleged negligence in his statement assumed the burden of proving it and that this burden is not discharged by proof of the bailment and failure to return the property. In the later case of Wiser v. Chesley, 53 Mo. 547, the Supreme Court held that a prima facie case was made by proof of the bailment and loss of the property. In the latter case it does not appear in the statement of the case what the pleadings alleged, but from the appellant's brief in that case, it appears that the case was tried on the negligence theory. Judge THOMPSON concluded that the case of Wiser v. Chelsey was in conflict with the case of McCarty v. Wolfe, and as it was the later case, and, as he thought, gave a correct exposition of the law upon that question, he followed that case and held that when negligence was charged in general terms a prima facie case was made by proof of the bailment and loss or injury of the property. This has been the uniform holding by the courts of appeals in this class of cases since. [Clark v. Shrimski, 77 Mo.App. 166; Berger v. Storage & Commission Company, 136 Mo.App. 36, 116 S.W. 444.]
We think the apparent conflict in the cases arises from a failure to distinguish between causes of action based squarely upon a contract of bailment and those founded upon negligence. It is familiar law that in bailment cases it is not necessary...
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