Pennyroyal Fair Ass'n v. Hite

• Decision Date: 29 September 1922
• Parties: PENNYROYAL FAIR ASS'N v. HITE.
• Court: Kentucky Court of Appeals

243 S.W. 1046

195 Ky. 732

PENNYROYAL FAIR ASS'N v. HITE.

Court of Appeals of Kentucky.

September 29, 1922

Appeal from Circuit Court, Christian County.

Action by Lester Hite against the Pennyroyal Fair Association. Judgment for plaintiff, and defendant appeals. Affirmed.

McKenzie & Smith and Ira D. Smith, all of Hopkinsville, for appellant.

Breathitt & Breathitt, of Hopkinsville, John D. Shaw, of Cadiz, and Hunter Wood & Son, and J. B Allensworth, all of Hopkinsville for appellee.

THOMAS J.

This action, filed in the Christian circuit court by appellee and plaintiff below, Lester Hite, against appellant and defendant below, Pennyroyal Fair Association, seeks a judgment in favor of plaintiff against the defendant for the sum of $1,006, the alleged value of an automobile and certain attachments thereto, which plaintiff claims to have parked within the enclosed fair grounds of defendant in the city of Hopkinsville, Ky. on August 30, 1919, it being the last day of the fair exhibition given by it for that year, and for which he paid defendant the sum of 25 cents. In addition to the foregoing facts, it was alleged in the petition that the automobile and its attachments were placed in the fair grounds at a point designated by the agents of defendant, and that they were stolen and taken away and never recovered by the plaintiff, all of which, as alleged, resulted from the negligence and carelessness of defendant in not properly watching after and protecting the property while in its charge as bailee as alleged.

Before the demurrer filed to the petition was acted on, plaintiff filed an amended petition in which he pleaded a special contract made with him at the time he placed his automobile within the fair grounds that, in consideration of the charged fee, the defendant would safely look after and keep the property thus put in its custody. By agreement of parties the demurrer theretofore filed to the original petition was directed to it as amended, and it was overruled, to which exceptions were taken. The answer was a denial of the material averments of the petition as amended, and, upon trial, the jury returned a verdict in favor of plaintiff for the amount sued for, upon which judgment was rendered, and defendant's motion for a new trial was overruled, and it prosecutes this appeal.

A number of alleged errors are incorporated in the motion for a new trial, but the principal one argued on the appeal is that the verdict is not sustained by the evidence, and defendant's motion for peremptory instruction should have been given. There is also some complaint directed at the instructions of the court, but it is contended by counsel for plaintiff that none of them can be considered, since they were not properly made a part of the record. It is conceded that no bill of exceptions incorporating the instructions as a part of the record was filed, but it is claimed that they were made such by an order of court. An examination of the record leaves it very doubtful to our minds as to that fact. The orders of the court show that instructions Nos. 1, 2, and 3 were given to the jury to which both parties objected and excepted, and that plaintiff offered instructions A and B to the giving of which defendant objected, and its objections were sustained, and the court refused to give either of them. The clerk has copied certain papers marked 1, 2, and 3, which he says were the instructions mentioned in the order of the court, and likewise copied two other papers which he says were instructions A and B, offered by plaintiff and refused by the court. These papers have on them a typewritten statement, with the typewritten name of the presiding judge attached thereto, stating which of them were given and which refused.

There is no particular formal method by which the court may make instructions a part of the record by its order, but surely something should appear therein, other than their designation by letters or numbers indicating that it was the purpose of the court to make them a part of the record without being incorporated in a bill of exceptions. There is nothing in the order of court in this case different from those in other cases heretofore determined in this court, and in which it was held that the instructions were not properly a part of the record. When they are not so, the only questions left for consideration on appeal here are whether the pleadings support the judgment, and whether the verdict of the jury is warranted by the proof. Tinsley v. White, 54 S.W 169, 21 Ky. Law Rep. 1151; Forest v. Crenshaw, 81 Ky. 51; Mudd v. Shroader, 152 Ky. 696, 154 S.W. 21; Gardner v. Alexander, 159 Ky. 713,...