Kneier v. Watrous

Plaintiff appeals from order refusing a new trial.

*594The action is to recover the value of a mare, which, it is averred, on the twenty-sixth day of June, 1889, was being pastured for plaintiff at the Learned and Harris ranch, then in charge of one Lowry.

Defendant also had a horse there on pasture, and went to the premises to get his animal. Lowry was not at the house, although on the premises, and defendant with his servant went into the pasture without obtaining actual permission so to do from any one, and drove his horse into the corral for the purpose of catching it. There were several other horses there on pasture besides these two, and some seven or eight went into the corral with defendant’s, and were, of course, locked in while he proceeded to catch his horse. In doing this, his animal became frightened and jumped over the fence, and plaintiff’s mare, attempting to follow, was killed. The real question in the case is, whether defendant is responsible.

The complaint contains two counts. The first charges the defendant with having “ negligently chased and drove about ” plaintiff’s mare, by reason whereof it was injured: The charging part of the second is as follows: —

“ That on or about the said twenty-sixty day of June, 1889, the said defendant, without right, and against the will and consent of the plaintiff herein, entered into and upon the inclosure and pasture wherein the said bay mare then was, and -without right, and against the will and consent of said plaintiff, chased and drove the said mare about the said inclosure and pasture, and into a corral then and there being, and while in said corral chased and drove the said mare about, until she, in attempting to escape from the said corral, jumped upon a post then and there standing, and was thereby greatly hurt, damaged, and injured, so that the said bay mare, in consequence of said hurt, damage, and injury, was killed.”

By stipulation of the attorneys, the answer filed by the defendant was taken and considered as an answer to *595the amended complaint herein; but it is said that no finding was made upon the issue raised by the allegations of the second count and the denials thereof. The court did find, however, that the defendant did not chase or drive the mare about the inclosure or corral “ negligently or at all,” and that “the defendant did not damage, hurt, or injure, or cause to be damaged, hurt, or injured, the said mare.” It follows, therefore, that the material allegations of the complaint -were denied, and that the findings cover the only material issue.

There is no appeal from the judgment, and there is no specification of insufficiency of the evidence to support any of the findings, nor is there any specification of error.

The order is therefore affirmed.