Ireland v. Horseman

• Decision Date: 31 October 1877
• Parties: IRELAND, APPELLANT v. HORSEMAN
• Court: Missouri Supreme Court

65 Mo. 511

IRELAND, APPELLANT

v.HORSEMAN

Supreme Court of Missouri.

October Term, 1877.

Appeal from Caldwell Circuit Court.--Hon. E. J. BROADDUS, Judge.

Shanklin, Low & McDougal for appellants.

The third instruction given at the instance of defendant is misleading.

The jury are told they must find the existence of three facts in favor of the appellant, viz: that respondent took the cow and shipped her and converted her to his own use, or they must find for respondent.

It is not alleged in the complaint that respondent shipped the cow, nor was it necessary to constitute appellant's cause of action, and yet by this instruction the jury are told that they must find, and that too from a preponderance of the evidence, that respondent not only took the cow and converted her to his own use, but that he also shipped her, or they must find for respondent. Here is a fact not alleged in the complaint, and not necessary to appellant's cause of action, thrust into the case by this instruction, and thus interposed as a barrier to appellant's recovery. The taking or shipping appellant's cow without his consent, by respondent, would in law constitute a conversion, and the jury should have been so instructed; but instead of that, this instruction presents the taking, the shipping and the conversion as three distinct facts, the finding of each and all of which, in favor of appellant, are made essential to his recovery. By thus presenting these three elements, the court gave the jury to understand that they were separate and distinct facts--that the converting to his own use was not the legal conclusion from the taking or shipping, but an independent act of respondent which appellant must prove before he could recover. If respondent, in gathering up his own cattle, drove appellant's cow and penned her with his own, and she was thereby lost to appellant, respondent was liable, unless he used reasonable care in separating said cow from his own, and permitting her to return to her usual pasture; and plaintiff having, by the proof, traced his cow into the pen with respondent's cattle, and showed that these cattle had been collected and penned by respondent, made a prima facie case of conversion, and it devolved upon the respondent to show that he exercised reasonable care in repairing the wrong he had done.

J. M. Hoskinson for respondent.

The burden of proving not only that plaintiff's cow was in the stock pens, but that defendant did actually ship her and convert her to his own use, as he has alleged, was upon plaintiff. Sturdevant v. Rehard, 60 Mo. 152.

NAPTON, J.

This suit originated in a justice's court, and the statement was that, on a day named, at Breckenridge, in the county of Caldwell, defendant wrongfully took and converted to his own use a cow of plaintiff, of the value of thirty dollars. The details of the testimony are not stated, nor is it necessary that they should be, but the bill of exceptions states that there was evidence tending to prove that the cow in controversy was the property of the plaintiff and was of the value stated in the petition, and that said cow was placed in a stock lot in Breckenridge by defendant, with a lot of cattle that he had placed there to await shipment, and that all the cattle in said lot were driven to the...