Owens v. Geiger

• Decision Date: 31 May 1828
• Citation: 2 Mo. 39
• Parties: OWENS v. GEIGER.
• Court: Missouri Supreme Court

2 Mo. 39

OWENS

v.GEIGER.

Supreme Court of Missouri.

May Term, 1828.

ERROR FROM JEFFERSON COUNTY CIRCUIT COURT.

M'GIRK, C. J.

This was an action on the case for negligently keeping a horse, as innkeeper, and permitting him to escape so that he was lost; plea not guilty, and issue joined. On the trial of the cause, it appeared in evidence that Geiger was an innkeeper, and stable-keeper, and kept horses for pay, and that Owens delivered his horse to him to be kept till his return, as he was going to foreign parts; that Owens agreed with Geiger as to the feeding and keeping of the horse till his return, for which Owens was to pay a reasonable reward; that Owens told Geiger that he wished his horse to run in his yard in the day time, his leg being swelled; that Geiger said he would allow his horse to run in the lot with him whilst there; and that Owens consented that his horse might be put in the lot in the day time, if Geiger would let his horse run with him; that about four days afterwards, about sundown, Geiger took his horse out of the lot to use him, and rode him off, leaving Owens' horse alone in the yard; that during the absence of Geiger's horse, Owens' horse jumped out and escaped, and was lost. Other testimony was given on both sides, none of which need by noticed for the purpose of coming at the point to be decided in this case. After the evidence was gone through on both sides, the defendant's counsel prayed the court to instruct the jury, that if they believed that Owens' horse was put into the defendant's yard by Owens' direction, and that the horse escaped therefrom without negligence on the part of Geiger, then they must find for the defendant. This prayer for instruction was undoubtedly right. ^(a) The court then proceeded to instruct the jury: That the agreement between plaintiff and defendant, concerning the keeping and feeding said horse, as proved, was a special agreement; and that plaintiff to maintain his action, should have set it out in his declaration specially, and that not being done in this case, they must find for the defendant. Upon this instruction the jury found for the defendant; and this instruction, among other things, is assigned for error.

We are clearly of opinion this instruction was wrong; it proceeds on the ground that the request of Owens, that his horse in the day time might run in the stable-yard, and Geiger's assent that his horse might run with him, is an essential constituent part of the undertaking, to keep...