Weaver v. Rudasill

• Decision Date: 01 March 1913
• Parties: D. S. WEAVER, Respondent, v. I. L. RUDASILL, Appellant
• Court: Missouri Court of Appeals

154 S.W. 444

172 Mo.App. 33

D. S. WEAVER, Respondent, v. I. L. RUDASILL, Appellant

Court of Appeals of Missouri, St. Louis

March 1, 1913

Argued and Submitted February 3, 1913.

Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.

AFFIRMED.

Judgment affirmed.

Fry & Rodgers for appellant.

Under the state of the evidence in this case the fifth instruction given for respondent was error, very prejudicial to the appellant, in that it was a direct comment upon the evidence given by the respondent and favorable to him. Weil v Schwortz, 21 Mo.App. 372; Jones v. Jones, 57 Mo. 138; State v. Smith, 53 Mo. 267; State v Sivils, 105 Mo. 530; Oil Well v. Wolfe, 127 Mo 626; Hoffman v. Hoffman, 126 Mo. 493; Railroad v. Stock Yards, 120 Mo. 565; Barr v. City of Kansas, 105 Mo. 557; State v. Reed, 137 Mo. 138; Lucks v. Bank, 148 Mo.App. 381; James v. Insurance Co., 135 Mo.App. 251; Gage v. Mears, 107 Mo.App. 147; Spohn v. Railroad, 87 Mo. 81; Chapel v. Allen, 38 Mo. 221; Bank v. Currie, 44 Mo. 91; Compton v. Baker, 34 Mo.App. 140; Swink v. Huthony, 96 Mo.App. 426; Baker v. Com. Co., 61 Mo.App. 149.

E. S. Gantt for respondent.

It is always proper for the court to declare to the jury the legal effect of evidence. Stewart v. Sparkman, 75 Mo.App. 106; Nicholson v. Golden, 27 Mo.App. 154; Tyler v. Hall, 106 Mo. 323; Clark v. Cordry, 69 Mo.App. 15; Flemming v. Railroad, 89 Mo.App. 138; Gordon v. Burris, 153 Mo. 234; Bancher v. Gregory, 9 Mo.App. 105; Semple v. Crouch, 8 Mo.App. 593; Dunbar v. Briggs, 18 Neb. 94; 38 Cyclopedia of Law & Procedure, p. 1678.

REYNOLDS, P. J. Nortoni and Allen, JJ., concur.

OPINION

REYNOLDS, P. J.

--Plaintiff sold and delivered to defendant two mules, in exchange for a mare and his check for $ 170, delivered to plaintiff by defendant. It is averred in the petition and admitted by defendant that at the time the contract of sale or exchange was made, defendant warranted the mare to be sound in in every particular and that in reliance upon this warranty plaintiff was induced to purchase the mare in exchange for the mules and to hand over his check for the money. Averring that these representations and warranties as to the soundness were false, in that the mare was stiff and broken down in her hind parts and afflicted with stringhalt, these, it is alleged, being incurable diseases, in consequence whereof the mare was practically valueless and that she was so at the time she was delivered to plaintiff by defendant, and averring that plaintiff had offered to rescind and had tendered defendant the mare and the check and had demanded and requested the return to him of the mules, and that defendant had refused to return the mules or to accept the mare and the check, and averring that the value of the mules was $ 395, and charging that defendant had converted them to his own use, plaintiff charges that he has been damaged in that sum, for which, with interest and costs, he demands judgment.

In the answer, admitting the trade and the terms as set out, and that at the time of making the trade, he warranted the mare to be sound, defendant denied all other allegations in the petition.

There was a trial before the court and a jury and at its conclusion a verdict for the amount claimed, $ 395, was returned, judgment following. Plaintiff filed a motion for a new trial in due time and also within due time filed a supplemental motion alleging newly discovered evidence, undue familiarity by plaintiff toward the jury when on the witness stand, and that by reason of his having been of the regular panel, he had an undue intimacy with the jury. In a supplemental motion to the supplemental motion, filed five days after the rendition of the judgment, newly discovered evidence is averred. The parties filed affidavits pro and con as to these matters. The court overruled the motions, from which action of the court defendant, saving exception, duly perfected his appeal to this court.

It may be said of this case as of all other cases involving horse and mule trades, that the evidence was very conflicting. Learned counsel for defendant, now appellant, recognizing the rule under such circumstances, make no attack on the verdict as not supported by evidence.

The errors assigned are to the giving of an instruction at the instance of plaintiff in the following words: "The court instructs the jury that even though you find from the evidence that the plaintiff, after the trade in question, offered to sell said mare and represented her to be sound, yet if you further find from the evidence that said mare was not sound at the time of the making of the trade in question; and if you further find from the evidence that at the time of said trade no obvious defect in said mare was discovered by or known to plaintiff; and if you further find from the evidence in the case that the plaintiff tendered said mare and check to the defendant and demanded that he return to plaintiff said mules, as explained in plaintiff's instruction No. 1, then your verdict must be for the plaintiff."

The particular error assigned is to the inclusion in this instruction of the words which we have italicized.

Further error is assigned to the overruling of the motion for new trial in the light of the affidavits filed by appellant.

No objection is made to the first instruction given at the instance of plaintiff. It covers the whole case, as we think, correctly.

At the instance of defendant the court instructed the jury that defendant admits that he represented the mare in question to be sound at the time he traded her to plaintiff but that before plaintiff could recover in the case the burthen was upon him to prove to the reasonable satisfaction of the jury that the mare was unsound at the time he got her from defendant, and unless plaintiff had so proven by the greater weight of the credible testimony in the case, the verdict must be for defendant.

This instruction was also given at the instance of defendant: "If the jury believe from the testimony in the case that the mare in question was sound at the time plaintiff got her from defendant, then you are instructed that the plaintiff cannot recover; and this is true no matter if the mare thereafter became unsound, and no matter how soon thereafter she became unsound."

Another instruction asked and given at the instance of defendant was as to the credibility of the witnesses.

Citing authorities in support of the assignment of error to that part of the instruction given at the instance of plaintiff and which we have italicized, counsel for appellant particularly rely on Barr v. The City of Kansas, 105 Mo. 550, l. c. 557, 16 S.W. 483, and Weil v. Schwartz, 21 Mo.App. 372. In Barr v. City of Kansas, supra, the Supreme Court does condemn an instruction which is somewhat like the one before us. But when this whole instruction is taken in connection with others given particularly that given at the instance of defendant, we do not think that this clause vitiates it. It is claimed that the clause is an undue comment on the evidence. Evidently the reliance of the defendant was on the fact, and there was some evidence tending to prove it, that some days after defe...