Harris, et al. v. McClure, Pulaski, 1899

HARRIS et al. v. McCLURE.

COURT OF APPEALS OF KENTUCKY

52 S.W. 941; 1899 Ky. LEXIS 372; 21 Ky. L. Rptr. 686

October 5, 1899, Decided

PRIOR HISTORY:  [**1] Appeal from circuit court, Pulaski county.

DISPOSITION: Affirmed.

COUNSEL: O. H. Waddle, for appellants.

W. A. Morrord and Jas. Denton, for appellee.

JUDGES: DU RELLE, J.

OPINION BY: DU RELLE

OPINION

 [*941]  DU RELLE, J. - Appellee brought suit against appellants upon a bond given to indemnify the sheriff against damages he might sustain in consequence of the seizure and sale of a pile of poplar lumber upon a side track at a railroad station in Pulaski county, which had been levied upon as the property of one Wright, and which was claimed by appellee and alleged to contain 19,818 feet of lumber. The record discloses that a trial was had, and a verdict rendered for appellants. A motion was made by appellee for a judgment non obstante veredicto, and motion and grounds for new trial were also filed. The motion for a new trial was sustained on the ground that the answer was insufficient; the traverse being merely a denial "that the 19,818 feet of said lumber sold to satisfy said execution was the property of the plaintiff, or that it was levied upon without plaintiff's knowledge or consent." The action of the court in awarding  [**2] a new trial is urged as error. But the bill of exceptions does not show either the evidence upon that trial, or the instructions given, and it is therefore impossible to determine whether the answer, which was clearly a defective traverse,  [*942]  was cured by the verdict. It is urged that the rule of pleading applied by the trial court, would, in an action of trover and conversion of a horse, require a traverse of the ownership of the horse, or any part thereof. But we are unable to see the analogy. Had the action been for the conversion of a drove of horses containing 50 horses, clearly it would have been necessary to deny the ownership of the 50 horses, or any of them, in order to constitute a sufficient traverse. The question at bar seems to us to be strictly analogous to the form of denial required in an action of assumpsit, wherein it has been uniformly held that the denial must go to any part of the sum claimed in the petition.

The answer was amended, and, on a subsequent trial, verdict was rendered for appellee. The bill of exceptions shows only that appellee introduced testimony conducing to show that he was the absolute owner of the lumber in contest at the time of the levy, and  [**3] appellants introduced testimony conducing to show that Wright, the defendant in the execution, was the owner of the lumber at that time. The court instructed the jury that if they believed that appellee was the owner of the lumber in contest, or any part thereof, they should find for him the value of the lumber, or of such part as they believed from the evidence he owned at the time of the levy, and that, if they did not so believe, they should find for appellants. It is urged that this instruction was error, upon the ground that the record shows that the only issue tried was whether or not McClure was "the entire owner of the pile of lumber in contest," and that there was no contention that he was the owner of anything less than the whole pile. We are unable to see the force of this contention. It seems to us that where a plaintiff brings suit for the value of a group of separable objects, as a pile of lumber, it is proper to instruct the jury as was done in this case. While the evidence as a whole might have conduced to show that appellee was the owner of the entire lot of lumber, as stated in the bill of exceptions, specific portions of that evidence may have referred, to different  [**4] portions of the lot of lumber, and the jury might have believed the evidence as to one part, and not as to the other. Be that as it may, however, it was not error prejudicial to the appellants, for the jury found that appellee was the owner of the entire lot. The judgment is affirmed.