Hart v. Horine

• Decision Date: 15 January 1931
• Docket Number: No. 4834.,4834.
• Citation: 34 S.W.2d 524
• Parties: HART et al. v. HORINE.
• Court: Missouri Court of Appeals

34 S.W.2d 524

HART et al. v. HORINE.

No. 4834.

Springfield Court of Appeals. Missouri.

January 15, 1931.

Appeal from Circuit Court, Jasper County; R. H. Davis, Judge.

"Not to be officially published."

Action by E. A. Hart and another against Ben Horine. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Roy Coyne and H. W. Blair, both of Joplin, and Howard Gray, of Carthage, for appellant.

Adolph McGee and R. A. Mooneyham, both of Carthage, for respondents.

BAILEY, J.

This is an action to recover damages alleged to have been sustained by plaintiffs through the purchase from defendant of certain cholera-infected hogs. The petition was in two counts, the first alleging damages in the loss by death of 41 hogs purchased from defendant; the second alleging damages as the result of the death of 101 hogs, owned by plaintiffs, which became infected and contracted hog cholera from the other hogs so purchased from defendant. The answer was a general denial. On trial to a jury judgment was for plaintiffs on both counts of their petition for a total of $1,473.76 and defendant has appealed.

The sole error assigned is in the giving of plaintiffs' instruction No. 1. This instruction is as follows: "The court instructs the jury that it is a violation of the law of this state for any person to sell or offer for sale any swine which is infected with hog cholera, and if the jury find and believe from the evidence that on the 24th day of September, 1926, the defendant sold the plaintiffs forty-one hogs and that said hogs were at the time sick or infected with hog cholera and that the defendant knew that fact, and that said hogs shortly thereafter because of such disease died, then your verdict must be in favor of the plaintiff under the first count of plaintiffs' petition."

It is not charged that this instruction failed to properly state the law, but it is asserted that plaintiffs' petition was bottomed on a warranty and that the instruction authorized a recovery under the statute; that plaintiffs, having brought suit on one theory, cannot recover on another and were bound by the statement of the cause of action contained in their petition. Looking to the petition, we find the gist of the action couched in the following language, to wit:

"Plaintiff further says that before and at the time the plaintiff purchased said hogs a number of defendants hogs were sick and died with the cholera or some other fatal disease and that the forty-one hogs so purchased by the plaintiff from the defendant had been in the same lot and inclosure with defendant's sick hogs and exposed to said hog cholera or other fatal disease and were then and there at the time of the sale by the defendant to the plaintiff said forty-one hogs were infected with and then and there had hog cholera or some other infectious or contagious disease, all of which said facts the defendant then and there at all times well knew.

"Plaintiff further says that notwithstanding the defendant then and there well knew that said forty-one hogs as well as the other hogs were infected with cholera or some other disease, the defendant then and there unlawfully sold said hogs to plaintiff and then and there falsely and fraudulently represented and stated to the plaintiff that said forty-one hogs were all well and sound and had not been exposed to the hog cholera or any other disease and then and there guaranteed and warranted to plaintiff that said forty-one hogs were well and sound of disease.

"Plaintiff further says that on the morning of the 26th day of September 1926 and after plaintiff had removed said hogs to his own feed lot on plaintiff's farm, one of the said forty-one hogs so purchased from the defendant died with hog cholera or some other disease and that within a week from that date all of the forty-one hogs so purchased by the plaintiff from the defendant died with the cholera or some other disease.

"Plaintiff further says that the defendant at all times then and there well knew that the hogs of the defendant, including the forty-one head so...