155 P. 449 | Utah | 1916
This is an action for claim and delivery of personal property. The property involved is a yonng mare, referred to in the bill of exceptions as a filly, which, at the time the action was commenced, was about two years old. The cause was tried to a jury; who returned a verdict for the plaintiff. To reverse the judgment rendered on the verdict, defendant has brought the case to this court on appeal.
The facts not in dispute, so far as material here, are as follows: The plaintiff, a farmer, is and for more than thirty-five years has-been, a resident of Cache County, this state, where, in connection with raising farm products, he has been engaged in breeding and raising Percheron horses. In the spring of 1910, a mare colt was foaled on the farm by one of his mares. The mare and colt were kept on the' farm until the spring of 1911, when they were taken.to and placed in a pasture in the mountains. In September of that same year, they were returned to the farm. Ed. Stewart, a horse dealer, pastured about twenty-eight head of horses in plaintiff’s field and pasture during the fall of 1911. One of these was a filly (referred to in the record as the “Peart” filly), which, according to evidence offered by plaintiff, “resembled” his filly “quite a little bit.” Plaintiff’s, mare and filly mingled and grazed in the field and pasture with the Stewart horses. Soon after the plaintiff’s filly was turned into the field and pasture with the horses mentioned, it, unbeknown to plaintiff, either strayed or was taken away from the premises, and for several months thereafter its whereabouts was unknown to plaintiff. Stewart, in the early part of January, 1912,
“About the first of-January, 1912, Mr. Ed. Stewart * * * came to my home to see me about a horse. He went to the barn, and a filly was out in the yard. I told him that was a colt that came to my place. Mr. Stewart claimed the animal as his filly. He paid me a check of five dollars for keeping the filly. That is not the same animal that I afterwards saw in Mr. Bair’s possession. * * * It was not my mare. I didn’t claim it. * * * I did not recognize it to be mine at all. It did not look like my animal at all. * * *
Several of plaintiff’s witnesses testified that they had known plaintiff’s filly practically from the time it was born until the commencement of this action, and that the animal claimed and taken from plaintiff’s premises by Stewart January 12, 1912, was not the filly in controversy. In fact, there is not a scintilla of evidence in the record that tends to show that the filly delivered to Stewart by plaintiff on the date last mentioned belonged to plaintiff, or that it was, or might have been, delivered to Stewart by mistake.
As stated, the cause was tried by both plaintiff and defendant on the theory that it was .not plaintiff’s property. In other words, plaintiff presented his case to the jury on the theory that there were two animals, that one of the animals belonged to Stewart and was taken from plaintiff’s premises by Stewart on January 12, 1912, and that the other animal is the filly in controversy; and defendant tried and presented the case on the theory that the animal in dispute is the identical filly that plaintiff delivered to Stewart as herein stated.
Defendant requested the court to instruct the jury that:
“The plaintiff has not tried this case upon the theory that he delivered the animal in question to Mr. Stewart in January, 1912, by mistake, ’ ’ etc.
The court, however, notwithstanding its attention was thus specifically invited to the fact that plaintiff did not base his right to recover upon the ground that the animal he delivered to Stewart may have belonged to him and that it was thereby delivered by mistake, and also reminded that .there was absolutely no evidence to sustain such a theory, charged the jury as follows:
‘1 The jury are hereby instructed that in case you find from a preponderance of the evidence in this ease that the animal which was turned over and delivered to Mr. Stewart by the plaintiff in the month of January, 1912, at the plaintiff’s premises, was in fact, the identical animal which the plain
The giving of this instruction is assigned as error.
It is a well recognized rule of law that instructions to the jury should conform to the issues presented by the pleadings and those raised .by the evidence. We think the instruction complained of clearly offends against this rule. We do not wish to be understood, however, as holding that every departure from this rule is sufficient to justify a reversal. Each case must be determined upon the particular facts there involved. If it should appear that a party is not deprived of a substantial right by the court, inadvertently or otherwise, giving an instruction not in strict conformity with the issues, then, of course, in such case, he would not be entitled to have the ease reversed because of the error. The question therefore arises: Was the giving of the instruction in question prejudicial error.
The court instructed the jury that:
This instruction is, because of the italicized part, objectionable. The burden was on the plaintiff to prove by a preponderance of the evidence that he was the owner and entitled to the possession of the animal in question, and unless he sustained this burden the defendant was entitled to a verdict in his favor; and, if the evidence was equally balanced regaining ownership and the right of possession, the defendant was entitled to prevail. The instruction last referred to was not excepted to, nor is it assigned as error; hence it is not before us for review. Since the cause must be reversed and remanded for a new trial, we invite attention to the objectionable part of the instruction so that the error may be avoided when the case is retried.