McCarthy v. Wolfe

• Decision Date: 31 March 1867
• Citation: 40 Mo. 520
• Parties: JOHN MCCARTHY, Respondent, v. THOMAS M. WOLFE, Appellant.
• Court: Missouri Supreme Court

40 Mo. 520

JOHN MCCARTHY, Respondent,

v.THOMAS M. WOLFE, Appellant.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Circuit Court.

R. S. McDonald, M. L. Gray, and F. Garvey, for appellant.

I. The court erred in refusing the first instruction asked by the defendant to-wit, “that upon the proof made the plaintiff could not recover.”

Plaintiff alleged the loss of the cattle “through the carelessness, negligence and improper couduct of defendant.” Defendant denied this, and thus the burden was on plaintiff to prove that they were lost by default of defendant. Plaintiff did not sue for a non-delivery, but for a loss by the neglect of defendant--4 Eng. Law & Eq. 531, 535-6; 3 East, 192, 197-8; 8 Ind. 530; 2 Kent, 587; Sto. on Bail. § 410; 7 Humph. 134; 24 Mo. 600.

Van Wagoner, for respondent.

FAGG, Judge, delivered the opinion of the court.

This was an action on the part of the respondent to recover of the appellant the value of fifteen head of cattle, alleged to have been lost through his carelessness, negligence, and improper conduct; they were alleged to be worth the sum of five hundred dollars, and constituted a portion of a large lot of cattle which plaintiff had put in charge of the defendant to be fed and taken care of at a stipulated price. It is further averred that eighty-four head of the number in defendant's possession were upon request re-delivered to the plaintiff. The following extract from the petition shows substantially the cause of action as set out by the plaintiff after stating the re-delivery aforesaid: “But the defendant intending to deceive and defraud the plaintiff in this behalf, did not take due and proper care of the residue, namely, of fifteen of said cattle, or safely or securely keep said fifteen cattle for the said plaintiff; nor did nor would the defendant, when he was so requested as aforesaid, or at any time before or afterwards, re-deliver to the plaintiff said fifteen cattle, but, on the contrary thereof, the said defendant so carelessly behaved and conducted himselfowith respect to said cattle, and took so little and bad care of said cattle, that by and through the carelessness, negligence and improper conduct of the defendant, fifteen of said cattle, of the total value of five hundred dollars, became and were and are wholly lost to said plaintiff,” &c. The issue thus tendered by the petition was fully met by the answer, and upon the trial in the St. Louis Circuit Court the plaintiff had judgment for two hundred dollars.

The only question presented by the appeal to this court is as to the refusal of the first instruction asked by the defendant. This instruction is in the nature of a demurrer to the evidence, and was asked at the conclusion of plaintiff's case.

It should be remarked that the defendant in this case did not by his contract assume to become an insurer. He was only bound to observe reasonable care. The measure of his obligation in this behalf is so uniformly stated in all the authorities that it need not be supported by any reference to...