Kellar v. Garth
Missouri Court of Appeals
Appeal from the Clay Circuit Court. — Hon. J. M. Sandusky, Judge. The court erred in giving instructions, numbered 3 and 4, for the plaintiff, and numbered 4, of its own motion. First.
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Appeal from the Clay Circuit Court. — Hon. J. M. Sandusky, Judge. The court erred in giving instructions, numbered 3 and 4, for the plaintiff, and numbered 4, of its own motion. First. These instructions proceed upon the theory that the evidence shows a bailment from Kellar to the Garths of the mules and scraper — that, under the contract, Stephenson, “and no one else,” should drive the mules; that a servant of the Garths, with their consent, and in the discharge of his duty, undertook to and did drive the mules without the plaintiff’s consent; and that, by permitting such change of, drivers,…
1Opinion of the CourtEllis ok, J.
— This action is for an injury to plaintiff’s mule. He recovered below, and defendants appeal. Plaintiff hired his driver, team and scraper to defendants. The mule was injured while being driven by one of defendants’ servants. Defendants were in charge of the work. Their servant, with their knowledge and consent took the place of the man whom plaintiff and they had contracted should be the driver. Defendant, John Garth, testified as follows: “Father told me to have the pond cleaned out. I saw Kellar ( plaintiff) and asked him for his team and scrapers and driver to clean it out. He said I…
2Cases cited4 opinions
- Hall v. CorcoranMassachusetts Supreme Judicial Court · 1871
- LaFayette County Bank v. Metcalf, Moore & Co.Missouri Court of Appeals · 1890
- Fox v. YoungMissouri Court of Appeals · 1886
- Perham v. ConeyMassachusetts Supreme Judicial Court · 1875
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- Everett v. Barse Live Stock Commission Co.Missouri Court of Appeals · 1906
- Security Trust Co. v. LongSupreme Court of Missouri · 1929