Upcher v. Oberlender

Opinion by Green, C.: S. B. Oberlender sued E. P. Upcher, M. F. Stevens, and A. 8. Burr, as partners, to recover damages alleged to have been sustained in permitting a bull to run at large, and thereby certain Shorthorn cows owned by the plaintiff were served. The evidence establishes the fact that plaintiff placed some 30 head of cattle in a pas [317] ture owned by a party by the name of Bright. A short time afterward the defendants placed a herd of western cattle, among which was a bull, in an adjoining field, owned by a man by the name of Osborn. It seems from the evidence that the fence between the two pastures was out of repair, that the bull of the defendants wandered into Bright’s pasture and served two thoroughbred cows owned by the plaintiff. The plaintiff soon after sold his cows to different parties, without communicating to the purchasers the fact that his cows had been bred. The case was tried by the court and a judgment was rendered in favor of the plaintiff for $200. The plaintiffs in error bring the case here, and ask a reversal of such judgment. It is urged that the judgment is excessive, unreasonable, and is not sustained by sufficient evidence. It was established by the evidence that the plaintiff sold his cows in a short time after they had been with the bull in question without knowing that they were with calf, and without informing the purchasers of the fact that they had been “exposed” to a “scrub bull.” It seems from the evidence that he obtained the market value for the cows. The plaintiff was asked to fix the amount he was damaged, that he could swear to positively, and he answered $200. This was not a proper way to arrive at the damages claimed. Damages cannot be proved by asking how much a thing is or was damaged. (W & W. Rld. Co. v. Kuhn, 38 Kas. 675; Town Co. v. Morris, 39 id. 380.) It was not a question as to how much the plaintiff had been damaged, but how much less the cows were worth after they had been served than they were before. The highest estimate placed upon the cows by any of the witnesses was $30 per head, and they were in fact sold for $27 apiece. We think it is clear from the evidence that the judgment is excessive. It is recommended that the judgment of the district court be reversed, and that a new trial be granted. By the Court: It is so ordered. All the Justices concurring.