65 Neb. 704 | Neb. | 1902
This action was brought by Charles T. Meyers against Louis C. Tolies to recover damages for the loss of a mare, alleged to have been occasioned by the negligence of the defendant. The petition, after alleging plaintiff’s ownership of the mare, and a contract between the plaintiff and the defendant for breeding the mare to a stallion belonging to the defendant, charges negligence, and* the consequent loss of the mare, in the following language: “That on said day, the said Earl Tolies, while in the service and under the instructions of the defendant, undertook to allow said stallion to serve said mare and to breed said mare to said stallion, and on account of the want of skill, negligence and incapacity of the said Earl Tolies in performing the service aforesaid, and by reason of his carelessness, negligence and incapacity- in allowing said stallion to serve said mare and in breeding said mare to said stallion, the said stallion was carelessly and negligently permitted-, to kill and he did then and there and thereby kill said mare to the loss and damage of the plaintiff in the sum of $19.” The defendant asked the court to require the plaintiff to make his petition more definite and certain, in that he should be required to state in what manner the stallion killed the mare. The motion was overruled, and the de
The principal complaint is that the court erred in overruling the motion to make the petition more definite and certain. We believe the complaint is well founded. Under the Code, the office of a pleading is to apprise the adverse party of the nature of the cause of action or defense of his adversary, in order that he may be prepared to meet it. There are many ways by which a stallion might possibly kill a mare, and it was manifestly unfair to leave the defendant in the dark as to which of such ways he would be required to negative in making out his defense. The plaintiff insists that the defendant was not in the dark in this regard, because the case had been tried once before a justice of the peace. But we are not advised as to the manner in which it was claimed before the justice the mare was killed. Perhaps one of the objects of the motion was to enable the defendant to confine the plaintiff to the issues made before the justice. There is no doubt in our minds that the overruling of the motion was prejudicial error. As bearing on this point, see McDuffie v. Bentley, 27 Nebr., 380, 384.
The defendant complains of a ruling of the court sustaining an objection to the following question, propounded to a juror under examination for cause: “Well, now to change your opinion in regard to Mr. Robinson, and his judgment on a matter, it would take good evidence, wouldn’t it?” Mr. Robinson was attorney for the plaintiff, and the juror had already expressed his respect for him and for his judgment. There was no error in the ruling. It will be taken for granted that a reasonable man will not change his opinion of another without what appears to him good reason. The most that could have been expected from the question was to show the juror had a good opinion of the attorney of the adverse party. Cases of that kind are far from unusual, and afford no good ground for challenge. Hutchinson v. State, 19 Nebr., 262.
It is recommended that the judgment of the district court be reversed and the cause remanded for further proceedings according to law. .
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed, and the cause remanded for further proceedings according to law.
Reversed and remanded.
