Russell v. Holder

Appellant’s complaint is that while the petition alleges as basis for recovery false representations of defendant as to the docility of the horse, 'whereby plaintiff was induced to ride him, the court in its instructions allowed recovery if the jury should find that, with knowledge of the vicious character of the horse, defendant requested plaintiff to ride him, or permitted plaintiff to ride him, without acquainting him with the fact. The court did not, however, submit the question of false repre*189sentations, but only that of negligence, and the allegations of the petition cover all the facts necessary to support the claim of negligence. In other words, the court construed the petition as stating a cause of action based on negligence rather than on false representation, and we think correctly, and submitted the case to the jury on that issue. The superfluous allegations of the petition as to false representations might properly be disregarded. The plaintiff was only bound to prove so much of the matter alleged as was necessary to make out his cause of action. We think defendant could not have been misled to his prejudice by the submission of the case to the jury as an action grounded on negligence, for defendant’s knowledge of the vicious or dangerous character of the horse would be a fact necessary to be shown on that issue.

There was no prejudicial error, and the judgment is AKKIRMED.