Henry v. Dennis

• Decision Date: 13 February 1884
• Docket Number: 11,197
• Parties: Henry v. Dennis
• Court: Indiana Supreme Court

93 Ind. 452

Henry v. Dennis

No. 11,197

Supreme Court of Indiana

February 13, 1884

From the Montgomery Circuit Court.

The judgment is reversed, with costs, and the cause remanded for a new trial.

E. C Snyder and J. R. Courtney, for appellant.

G. W Paul and J. E. Humphries, for appellee.

OPINION

Howk C. J.

In this case the appellant, Henry, sued the appellee, Dennis, before a justice of the peace of Montgomery county. Before the justice the appellant recovered judgment, and the defendant appealed to the circuit court of the county. The cause was there tried by a jury, and a verdict was returned for the appellee, and over appellant's motion for a new trial, judgment was rendered against him for appellee's costs.

The only error assigned by the appellant in this court is the overruling of his motion for a new trial. Before considering the grounds upon which the appellant's counsel claim the reversal of the judgment below, it is necessary to a proper understanding of the case, that we should briefly state the facts constituting the cause of action. In his complaint the appellant alleged that, on the 15th day of June, 1882, he was the owner of a milch cow, of the value of $ 100, and continued to own such cow until her death; that on or about the 16th day of June, 1882, in the city of Crawfordsville, Montgomery county, Indiana, the appellee negligently, carelessly, and unlawfully placed, caused to be placed, and suffered to remain on the outer edge of the sidewalk, at his place of business in said city, a barrel or barrels containing fish-brine; that said fish-brine was poisonous, and dangerous to the life of cattle eating or drinking the same; that on or about the last named day, without any fault on the appellant's part, and by reason of the careless, negligent and unlawful conduct of the appellee in suffering said fish-brine to be placed and remain on said sidewalk, and while the same was carelessly, negligently and unlawfully suffered to remain upon said sidewalk, the said cow ate and drank of said fish-brine, and thereby, from so eating and drinking such fish-brine, was poisoned and became sick, and died, to appellant's damage $ 100. Wherefore, etc.

In appellant's motion for a new trial, the first cause therefor was that the court erred in giving the jury, at appellee's request, instructions numbered from one to four inclusive, and each of them. Of these instructions the appellant's counsel complains, in argument, only of the second one. This instruction reads as follows:

"2. Before you can find for plaintiff you must be satisfied that the plaintiff has proved by a preponderance of the evidence that the cow of plaintiff did drink fish-brine out of a barrel that defendant had put out where the cow could get it, and did die from the effects of the fish-brine so drank."

Appellant's counsel insist that this instruction is wholly inapplicable to the case made by the complaint or the evidence, and is therefore, erroneous. This position seems to be well taken. It was not necessary that the appellant should prove by a preponderance of the evidence that his cow drank the fish-brine out of a barrel before he would be entitled to a verdict. He had not averred in his complaint that his cow ate and drank the fish-brine out of a barrel, and, therefore, the instruction complained of was not applicable to the case stated in the complaint. Was the instruction applicable to the case made by the evidence? It is insisted very earnestly by appellee's counsel, that the bill of exceptions, containing the evidence and instructions of the court, constitutes no part of...