Ransom v. Getty

• Decision Date: 09 July 1887
• Citation: 14 P. 487,37 Kan. 75
• Parties: A. E. RANSOM v. JOHN GETTY
• Court: Kansas Supreme Court

14 P. 487

37 Kan. 75

A. E. RANSOM v. JOHN GETTY

Supreme Court of Kansas

July 9, 1887

Error from Ellsworth District Court.

AT the October Term, 1885, plaintiff Getty recovered a judgment for $ 80 against defendant Ransom. He brings the case to this court. The opinion contains a sufficient statement of the facts.

Judgment reversed, and cause remanded.

Garver & Bond, for plaintiff in error.

Lloyd & Evans, for defendant in error.

HOLT C. All the Justices concurring.

OPINION

HOLT, C.:

This case was first tried before a justice of the peace and a jury, and the verdict and judgment were for plaintiff in error, for $ 66. Defendant in error, plaintiff below appealed to the district court, where the case was tried by a jury at the October term, 1885; verdict for plaintiff, for $ 80, and judgment thereon; motion for a new trial overruled. The defendant below is plaintiff in error.

This action grew out of the following facts: In the year 1884 plaintiff placed his mare and colt in the possession of the defendant, for the purpose of breeding the mare to a horse of the defendant. About the first of August, the same year, the mare and colt were taken sick, and both died while in the possession of the defendant. Plaintiff claimed that they died for want of proper care and attention, and brought suit against the defendant. The defendant answered by a general denial, and also asked judgment against the plaintiff for the care and keeping of the mare and colt.

Plaintiff makes four assignments of error. We shall consider only a part of them. The plaintiff, in his bill of particulars in which his cause of action was formally stated at some length, claimed that the contract between himself and defendant was that he should take good care of said mare and colt, and return them to plaintiff in good condition. He further alleged that defendant neglected said mare and colt, and by reason of such neglect they sickened and died. Testimony was introduced, over the objection of the defendant, showing that plaintiff stipulated for special and extra care of the mare and colt on the part of the defendant. The instructions to the jury were upon the theory that the defendant had introduced evidence showing that he had contracted to give more than ordinary care to the animals while in his possession. The findings of fact by the jury also seemed to follow the same theory. The first question answered was: "Did the defendant agree to take more than ordinary care of the mare and colt?" Answer, "Yes." The second question was: "If the above is answered yes, state what care was contracted for." Answer, "Good care." While we believe that ordinary care is good care, and a claim in the bill of particulars that the defendant contracted to give good care to the mare and colt of the plaintiff was simply an allegation that it was a contract for ordinary care, yet it is evident from the questions answered that the jury at least made a distinction between ordinary care and good care. They very naturally made that mistake under the instructions of the court, and the manner of introducing the evidence, a portion of which was offered to show that a degree of care greater than ordinary care was agreed upon between the parties in the keeping of the mare. Such evidence ought not to have been admitted under the pleadings. A number of instructions were given on the theory that more than ordinary care was contracted for. They were erroneous.

The defendant also complains of special instruction...