Lobenstein v. Pritchett , 8 Kan. 213 ( 1871 )

The opinion of the court was delivered by

Yalentine, J.:

A sack supposed to contain gold dust was delivered to the defendant George W. Pritchett at Helena, in Montana Territory, to be delivered by Mm to the plaintiff William 0. Lobenstein, at Leavenworth City, Kansas. After-wards said sack was so delivered; and afterwards it was opened; bnt when it was opened it was found to contain nothing but shot and sand. The plaintiff then sued the defendant for the value of the said gold dust which said sack was supposed to contain. Trial was had, and the verdict of the jury and the judgment of the court were for the defendant. The plaintiff now seeks to reverse said judgment.

The first ruling of the court below complained of is, that the court refused to allow the witness Alexander Kirk to testify whether he had paid the defendant anything for similar services performed by the defendant for the witness. This ruling was correct. The transaction between the defendant and Park had no connection whatever with the transaction between the defendant and the plaintiff. But suppose the court did at the time err, still the error was not substantial, for afterwards the witness stated in full just what he paid to the defendant and for what purpose he paid it. Johnston v. Hamburger, 13 Wis., 175, (179.)

The other rulings complained of are rulings that were made by the court in charging the jury. The court gave certain instructions to the jury to which the plaintiff excepted, and refused to give other instructions which the plaintiff asked to have given. Under the pleadings and the evidence we think the case was fairly submitted to the jury, and under the proper instructions. The questions of fact for the jury to consider were as follows: Was the sack filled with gold dust when the defendant received it? If so, was the gold dust abstracted from the sack while it was in the possession or under the control of the defendant, or was it in the sack when the sack was delivered to the plaintiff. If abstracted while in the possession or under the control of the defendant, was it so abstracted with his consent, or through his negligence? If through his negligence, what was the degree of the negligence? And was the defendant to receive any compensat on or reward from the plaintiff for transporting said sack from Helena to Leavenworth? The instructions given by the court embodied the law of this case and covered all the issues involved therein, and hence no other instructions were necessary. And it may be further said to their merit they contain but little if anything that is not applicable to this case. The principles involved in these instructions are so elementary in their nature however, and are so clearly the law, that we do not think it is necessary to make any further comment upon them.

Some of the instructions asked by the plaintiff and refused by the court are also good law; but being the same in substance as those given by the court, though differing in the mode of their expression, the court was not bound to give them. (Topeka v. Tuttle, 5 Kas., 312, 322, 429, 430; 6 Kas., 371, 471; 7 Kas., 156; ante, pp. 159, 180.) Of course such instructions as were not good law or were not applicable to this case the court was not bound to give.

Perhaps it would be proper for us to here say that it is not claimed that the defendant was a common carrier.

The judgment of the court below is affirmed.

Kingman, C. J., concurring. Brewer. J., not sitting in the case.