Kendrick v. Harris

• Decision Date: 05 May 1913
• Citation: 156 S.W. 490,171 Mo. App. 208
• Parties: KENDRICK v. HARRIS.
• Court: Missouri Court of Appeals

156 S.W. 490

171 Mo. A. 208

KENDRICK v. HARRIS.

Springfield Court of Appeals. Missouri.

May 5, 1913.

1. TRIAL (§ 150)—EVIDENCE—DEMURRER.

A demurrer to the evidence should be sustained where there is no evidence adduced by plaintiff to support his petition.

2. TRIAL (§ 252)—INSTRUCTIONS—EVIDENCE.

An instruction which submits to the jury a theory not supported by the evidence is erroneous.

3. APPEAL AND ERROR (§ 927)—VERDICT — CONCLUSIVENESS.

Where an issue in a case at law was submitted to the jury on proper instructions and defendant on appeal complains of the insufficiency of the evidence to warrant the submission to the jury, all the facts which the evidence tends to establish or which may be reasonably inferred therefrom must be taken as admitted and must be considered in the most favorable light to plaintiff.

4. ANIMALS (§ 44)—NEGLIGENT INJURY TO ANIMALS—EVIDENCE—SUFFICIENCY.

In an action for injuries to a horse frightened in consequence of the acts of defendant and running into a wire fence, evidence held to justify the submission to the jury of the issue of defendant's negligence.

Appeal from Circuit Court, Carter County; W. N. Evans, Judge.

Action by William Kendrick against Marion Harris. From a judgment for plaintiff, defendant appeals. Affirmed.

S. L. Clark, of Poplar Bluff, and C. H. Yount, of Van Buren, for appellant. J. L. Huett, of Van Buren, and E. P. Dorris, of Alton, for respondent.

STURGIS, J.

This case originated in a justice of the peace court of Carter county, Mo. The statement of plaintiff's cause of action, as there filed, is as follows: "Plaintiff for his cause of action states that on the 25th day of June, 1911, he was the owner of a bay horse which he had in a pasture on the premises of this plaintiff in Johnson township, Carter county, Mo., and that on said day the defendant, Marion Harris, was driving a roughish bull by said pasture where said horse was, and that said bull jumped into said pasture, and that the defendant with his hired hand entered said premises on horseback and chased said bull in a wild, careless, unnecessary, and reckless and willful manner and hallowed and run their horses in a reckless and careless way, and thereby frightened and scared this plaintiff's said horse, and thereby caused it to run into a barbed wire fence on said premises, and becoming entangled in said wire, thereby cutting large gashes across the breast and forelegs and damaging the said horse, to this plaintiff's damage in the sum of $100. Wherefore plaintiff prays judgment for the sum of $100 and costs of this suit." It seems that the plaintiff recovered judgment in the justice's court, but it is not shown for how much. The defendant appealed, and on a trial anew in the circuit court plaintiff recovered judgment for $50. The defendant brings the case here by appeal, and his principal assignment of error is that the evidence was not sufficient to make a case for the jury and that the court erred in not directing a judgment for defendant.

After the evidence was in the court gave to the jury the following instruction on behalf of the plaintiff: "The court instructs the jury that if you find and believe from all the facts and circumstances in evidence that the defendant recklessly and willfully or unnecessarily drove or caused to be driven a bull through or over the inclosed premises of the plaintiff, and thereby caused the horse in question to become frightened and run into a barbed wire fence and thereby injured, then you should find the issues for the plaintiff and assess his damage at such sum as you may find he has sustained, if any, not exceeding, however, the sum of $100."

At the instance of the defendant, the court gave this instruction: "The court instructs the jury that, before plaintiff is entitled to recover in this case, it devolves upon him to establish by the evidence that the defendant entered upon the premises of the plaintiff and frightened the horse of plaintiff, which caused him to run into the barbed wire fence surrounding the pasture in which said horse was grazing, thereby injuring said horse in the manner and to the extent described in the evidence, and unless he has so established such facts, your verdict should be for the defendant."

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