Lyman v. Dale

• Decision Date: 02 December 1914
• Docket Number: No. 16838.,16838.
• Citation: 262 Mo. 353,171 S.W. 352
• Parties: LYMAN v. DALE.
• Court: Missouri Supreme Court

171 S.W. 352

262 Mo. 353

LYMAN v. DALE.

No. 16838.

Supreme Court of Missouri, Division No. 1.

December 2, 1914.

1. JUSTICES OF THE PEACE (§ 90) — PLEADING — FORMALITIES.

In justices' courts the same strict formalities of pleading are not required as in the circuit court, but, if the plaintiff elects to plead in strictness in such court, he is bound by his pleadings.

2. JUSTICES OF THE PEACE (§ 124) — PLEADING — NEGLIGENCE — CONFORMITY OF JUDGMENT TO PLEADING.

A complaint in a justice's court, alleging that injury to a buggy wheel was caused by leading a wild and unruly mule in a negligent manner, does not authorize a recovery for the negligent handling of an ordinary mule.

3. MUNICIPAL CORPORATIONS (§ 706) — USE OF STREETS — NEGLIGENCE — EVIDENCE.

In an action in justice's court for damages to a buggy wheel caused by a mule led through a city street by an employé of defendant, evidence held insufficient to sustain a verdict for plaintiff, whether the complaint be construed as alleging the leading of a wild and unruly mule in a negligent manner or the negligent leading of an ordinary mule.

4. APPEAL AND ERROR (§ 204) — REVIEW — OPINION EVIDENCE NOT OBJECTED TO.

Though opinion evidence of a fact is admitted without objection, such evidence cannot be considered by the court on appeal, if the fact was not provable by such evidence.

5. EVIDENCE (§ 512) — EXPERT TESTIMONY — ADMISSIBILITY.

The use of a halter with a rein five or six feet for the leading of both horses and mules on the public highway is one of such long standing that expert testimony as to the due care used is inadmissible.

6. MUNICIPAL CORPORATIONS (§ 705) — USE OF STREETS — LEADING MULE BY REIN.

Leading a mule by the rider of another mule, in a city street, with the use of a halter with a rein five or six feet held at the end thereof, is not negligence, if the mule has no vicious propensities.

Appeal from Circuit Court, Greene County; J. T. Neville, Judge.

Action by B. L. Lyman against Horace Dale. From a judgment for plaintiff, defendant appeals. Certified to the Supreme Court from the Springfield Court of Appeals. Reversed without remand.

W. D. Hubbard and J. T. White, of Springfield, for appellant. Roscoe Patterson, of Springfield, for respondent.

GRAVES, J.

This case involves the magnificent sum of $5. It reaches us under a certification from the Springfield Court of Appeals. We are enlightened by three well-written opinions from the three respective members of that court. The facts we shall state for ourselves. Plaintiff, having had one wheel of an old buggy somewhat demolished by coming in contact with a mule belonging to defendant, but being led by an employé of defendant, sought damages therefor before a justice of the peace in October, 1909. He thus challenges his enemy in an amended petition filed before such justice:

"Plaintiff, for an amended petition, states that on the 2d day of October, 1909, at the county and state of Missouri, he was driving a horse and buggy along Walnut street, between South and Jefferson streets, in the city of Springfield, on the right-hand side of the street; that defendant's agent and employé, on the aforesaid date, was leading a wild and unruly mule along the aforesaid street in such a careless and negligent manner as to permit said mule to run into and against plaintiff's said buggy, thereby injuring and breaking the wheel and axle of said buggy and damaging the same to the extent of $5. Plaintiff further states that, at the time of the accident aforesaid, defendant's agent and employé leading said mule was acting in the scope of his employment. Wherefore plaintiff prays judgment in the sum of $5."

As we gather the facts, plaintiff has been successful throughout from the justice's court up to the present. In the Court of Appeals his success was by a divided court. In this court he stands behind the fortification erected by his judgment, and submits his case here without brief. A yellow slip of paper found in the files here bears the ominous inscription. "The Celebrated Mule Case," and nothing more. Why we were thus enlightened by this otherwise silent monitor we know not. It at least admonishes to look well to the facts. Plaintiff and his brother and father-in-law were driving east on Walnut street in Springfield, Mo., in plaintiff's buggy, and, at a point where there was some digging in the street and some brick piled up in the street, met defendant's employé, James S. Parker, who was riding one mule and leading another. Both mules were of good size, and the one being led was gray in color, if the color is material. According to plaintiff's evidence, the halter strap by which the mule was led was five or six feet long; two witnesses say five and another says five or six feet. It was being held near the end. In passing the bricks the mule shied across to the buggy and got his hind leg between the shaft and the wheel, and in extricating itself damaged the wheel. Plaintiff's theory of the case is made to appear by the following evidence:

Plaintiff himself says:

"Q. Do you know the customary manner of managing mules when they are being led over the street? A. I don't know what lots of people do, but I know what I do with them. I would neck them together so they could not spread all over the street. Q. How would be a proper way to handle them? A. That would be a proper way to handle them, I think, would be to neck them together when you go through a crowded place like that. Q. How was he leading this mule? A. At the end of the halter rope. Q. How long was that rope? A. About five feet, the best I could tell."

The brother said:

"Q. Tell the court the proper manner to handle them. A. In a place where you are likely to have any difficulty with mules, you neck them right up short together. Q. Can they be handled at all by giving five feet of rein? A. No man can handle a mule of any size by a halter rein. If you are handling a mule you have got to halter him up close to you."

The father-in-law said:

"It was his hind leg; got it in between the wheel and shaft. I said the front wheel. That is all I know about it. I didn't see any misbehavior in the mule until we got right up to them. He shied at something. I don't know what it was. There was a lot of brick on the north side and some dirt thrown up there. If there were any red lights there, they were not lit up, because it wasn't dark enough. I quit work that day at 6 o'clock. I had not taken any whisky. I don't drink. We were sitting in the seat, and he was sitting on our knees. This did not happen very suddenly. It didn't take but a few minutes but the mule got the best of us. It was somewhere about a minute in happening. I did not see any misbehavior in the man who was riding the other mule, only he couldn't handle the mule, is all. He didn't have them up so he could handle them. I am not very much of a mule handler. He could have tied them up closer than he did. I don't think he was tied up at all. I think he was leading the mule at the end of the rope."

There is no evidence in the case to the effect that the mule in question was wild and unruly, or that defendant had any knowledge of the animal being unruly or wild, if it was so, in fact. Defendant said that the mule was well broke, but a little high-lifed, and this is as far as the evidence in behalf of the defendant adds to plaintiff's case. Defendant demurred to the evidence at the close of the plaintiff's case and again at the close of the whole case. Plaintiff's right to recover under the pleadings and under the evidence is thus squarely presented.

I. There are at least two reasons why this judgment should be reversed. It is true that in justice's courts the same strict formalities of pleadings are not required as in the circuit court; but it is further true that, if the plaintiff elects to plead in strictness in such court, he is bound by his pleadings there as he would be elsewhere. By this we mean, if he is suing in tort, and specifically states the negligence upon which he relies to recover, he must recover for that negligence and none other. In the case at bar, what is the negligence upon which the plaintiff seeks to recover? Is it the negligent handling of a mule, an ordinary average mule, or is it the negligent handling of a wild and unruly mule? And, if the latter, has there been a case made? This is the first proposition in the case. We have set out in full the plaintiff's statement of his cause of action. A reading of that statement shows that the plaintiff was undertaking to charge the careless and negligent handling of "a wild and unruly mule." Counsel for plaintiff, who drew and signed the petition for plaintiff, recognized that what would be a negligent handling of a wild and unruly mule might not be a negligent handling of an ordinary mule. He canvassed his facts, and then charged that defendant was guilty of a negligent handling of "a wild and unruly mule." This was the case defendant was called upon to meet. When, therefore, it was made to appear that the defendant had not handled "a wild and unruly mule" at all, the case stated had failed. Under the pleadings, the defendant was not required to come prepared to meet the question of a negligent handling of an ordinary mule, but, on the other hand, the plaintiff, if permitted to recover, must recover upon the case made by his pleadings. Under the case pleaded, his proof failed, and the court should have directed a verdict for the defendant.

II. But even grant it that the petition in this case is in such form and substance as to permit a recovery upon the proof of a negligent handling of a mule, without reference to the "wild and unruly" characteristic of the animal, as two of the judges of the Court of Appeals thought, yet should there have been a recovery under the evidence? We think not.

Plaintiff's theory is that the leading of a mule, somewhat "high-lifed" or high-spirited, upon a street, where a portion...