Tolles v. Meyers

1. Stallion: Mare: Service: Negligence: Killing oe Mare: Manner oe Killing: Motion to Make More Definite. The petition charged in effect, that through ihe negligence of the defendant, a stallion belonging to him, and to •which defendant had undertaken to breed plaintiff’s mare, in pursuance of an ag'reement between the parties, killed the mare. HeM, That a motion to require the plaintiff to state the manner in which the mare was killed should have been sustained. 3. Juror: Opinion of Party. That a juror has a good opinion of one of the parties to an action, is not a ground for a challenge for cause.

Error.from the district court for Cedar county. Tried below before Craves, J. The court erred in overruling defendant’s motion to require plaintiff to make his petition more definite, specific and certain, in that he be required to set out in what manner the stallion killed the mare. Section 125 of the Code of Civil Procedure provides: “And when the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment.” There is absolutely nothing in the petition to apprise defendant in what manner the stallion killed the mare. It does not state whether the stallion accomplished' this feat by kicking, biting or by knocking her down and trampling her to death, or whether the death was caused by the stallion, in properly or improperly serving the mare. Nowhere in the petition is there any allegation that even hints at the manner of killing, but it is left for defendant to inquire of third parties in what manner the mare met her death. It stands to reason that if the court had sustained the motion to make definite and certain, and that plaintiff had then set out that the death of the mare was caused by the stallion in making the entry into the rectum instead of the vagina, the defendant could have prepared his defense, which would undoubtedly have been that the .death of the mare was in no way attributable to the entry into the rectum. Defendant was compelled to go into court ignorant of one of the most important parts of his case and fight his case as plaintiff showed his hand. As it was, defendant had to depend upon the inspiration of the moment to meet plaintiff’s testimony. That the action of the court in overruling the motion to malte definite and certain was highly prejudicial to the rights of defendant, can not for a moment be doubted. In Stevenson v. Anderson, 12 Nebr., 83, 85, speaking of the provisions of section 125 of the Code of Civil Procedure, this court has said: “This provision is, of course, for the benefit and protection of defendants and plaintiffs alike, and to enable them to know just what is demanded by the opposite party, and it should be enforced in all proper cases. Where, however, the party against whom a claim is made, is already so fully advised by .the pleading of its nature as to be able to answer it intelligently, there is no reason for resorting to it.” The object of the motion to make definite and certain which was filed by defendant was to be fully advised by the petition as to the nature of the claim against him, so as to be able to answer it intelligently, and not be compelled to go into court, as he was, uncertain of the nature of the claim against him. It can not be supposed for a moment that if the petition had stated that the death of the mare was due to a wrong entry, that defendant would have filed the motion to make definite and certain, but the express purpose of that motion was to fully advise defendant as to that particular point and without which information he could not answer intelligently. This court has laid down the following rule: “That unless the motion can he allowed in the exact form presented to the court it will be denied.” McDuffie v. Bentley, 27 Nebr., 380, 384. The motion in that case was one to require defendant to make his answer more specific, and to state in what manner he informed the plaintiff of the defects in the notes in controversy. The court said that in that case it did not appear to be important to disclose in what manner this information was conveyed, but that if the motion had been limited to a rule requiring the defendant to state in his answer, definitely, that he informed the plaintiff, before the purchase and delivery of the note, of the identical defect charged against the note in controversy, then the court said it would be inclined to hold that the motion should have been allowed. The petition in the case at bar claims that the death of the mare was caused by the negligence, carelessness and incapacity of Earl Tolies in not properly handling the stallion, but nowhere in the petition does it set out in what respect the said Earl Tolies was negligent or careless in handling the stallion, nor in what manner the stallion killed the mare. The defendant had no other means than by a motion to make definite and certain, of learning the manner of the death of the mare. The manner in which the mare met her death was a fact peculiarly within the personal knowledge of plaintiff, and the court should have sustained the motion to make more definite and certain. It is apparent from the reading of this motion that the court could have allowed it in the exact form in which it was presented. We think a careful reading of the petition will convince this court that its allegations are sufficient to advise the plaintiff in error not only as to the exact character of the negligence chai ged, but also as to the manner in which the mare was killed. See petition, pp. 4 and 5 of transcript, and especially paragraph 4 thereof. This paragraph, we submit, charges in effect that the killing of the mare was the result of the careless and negligent manner in which the stallion was permitted to serve her; and this is sufficient. But if the'petition were indefinite on this point, it does not appear that plaintiff in error was in any manner prejudiced by the ruling of the court on his motion. Counsel for plaintiff- in error have not cited any authority, and we think none can be found, in support of the proposition that a refusal to sustain such a motion would, in any case, be reversible error; and in the only case referred to, Mc-Duffie v. Bentley, 27 Nebr., 380, 384, Cobb, J., says that he does not know of any such authority in this state. In addition to this the plaintiff in error could not have been ignorant of the matter referred to in the motion, because it appears from the record that the action was originally commenced in justice court. See cross-examination of defendant in error as to commencement of suit, bill of exceptions, p. 13, and cross-examination of witness Tolies, in justice court, as to counting number of mares, bill of exceptions, p. 16; and it also appears that the defendant in error recovered judgment in the district co.urt for his costs, which he could not have done if the action had been originally brought in that court. The court erred in not sustaining defendant’s motion to make the petition more definite, certain and specific. The petition does not disclose the manner in which the stallion killed the mare. The allegations of the petition are indefinite and uncertain in that respect. Code of Civil Procedure, sec. 125. The object of the motion was to fully advise defendant as to the nature of the claim against him, so that he would be able to answer it intelligently, and not be compelled to go into court uncertain of the mature of the charge against him. He was not advised by the pleading as to the nature of the charge against him. Stevenson v. Anderson, 12 Nebr., 85. The motion could have been allowed in the exact form presented to the court, and it was error to overrule the same. McDuffie v. Bently, 27 Nebr., 384. The court should have permitted the juror to answer the question propounded to him on his voir-dire examination. Monaghan v. Agricultural Fire Ins. Go., 18 N. W. Rep. [Mich.], 797; 1 Thompson, Trials, sec. 102; Basye v. State, 45 Nebr., 261.