Holliman v. Cabanne

Bliss, Judge, delivered tbe opinion of tbe court. Plaintiff sues for loss of ahorse, and charges that, as keeper of a livery stable, be loaned defendant for hire a horse and cutter, and that, by the carelessness and negligence of defendant, tbe horse ran away, was wounded, and died of tbe Avounds, and tbe cutter Avas damaged. Defendant denies that tbe running aAváy was caused by bis negligence, and for second defense alleges that it Avas caused by the negligent harnessing by plaintiff’s servants. Tbe jury found for tbe defendant. Tbe court gave all tbe instructions asked upon both sides, which were substantially alike. Tbe plaintiff, in bis brief, objects to some of tbe instructions given at tbe instance of tbe defendant, but it does not appear from tbe record that be excepted when they were given; hence, we cannot consider them even if they were erroneous. (Thomas v. Erskine, 7 Mo. 213 ; Boyce v. Prickard, 31 Mo. 530, and other cases.) Tbe plaintiff did except to one question propounded to tbe defendant as a witness. One of tbe. plaintiff’s witnesses bad testified that defendant called at the stable tbe day after tbe accident, and got another horse and sleigh, and said “ be did not think be ought to pay for tbe horse” — i. e., tbe one hurt. Tbe next question is: “Did you see him after that?” Answer. “Yes, sir; became to hire a carriage, and we talked about bis- paying for tbe horse. He said, ‘ Well, I have got two or three horses doAvn at Harrington’s; be can have one of them.’ ” When tbe defendant testified, be denied making this statement, and was asked, “ Then was Mr. Black’s statement true or untrue ? ” Answer. “ It was true.” This question was excepted to, though tbe ground of objection Avas not given. [570] The matter was of no importance whatever, and had nothing, to do with the issue. The petition was not based upon a promise to deliver another horse, and it did not matter whether Black’s statement were true or untrue; but even if that promise were in issue, the question was simply informal, and its answer could not have materially affected the case. Witnesses should not give their opinions upon the truth of a statement by another witness, though they may do the same thing in effect by denying the fact stated. Judgment affirmed. The other judges concur.