
    George Snell, Respondent, v. William Cornwell, Appellant.
    
      Injury to a horse while in the possession of a bailee for hire— the bailee, must show that it was not the result óf negligence on his part.
    
    Where a horse dies as the result of an injury received by it while in the possession of a bailee for hire, the bailee must, in order to defeat an action brought against him by the owner of the horse to recover its value, prove that the injury which the horse sustained was not the result of negligence or of want of reasonable care on his part.
    Appeal by the defendant, William Cornwell, from a judgment of the County Court of Jefferson county in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 17th day of December, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of December, 1903,' denying the defendant’s motion for a new trial made upon the minutes.
    
      Lewis H. Ford, for the appellant.
    
      John O'Leary, for the respondent.
   Spring, J.:

This action was commenced in Justice’s Court. The plaintiff recovered a verdict, which was substantially a victory for the defendant, and an appeal was taken to the County Court and a new trial had. The plaintiff was the owner of a horse and hired it out to the defendant to work on the latter’s farm for a period of two weeks at fifty cents a day. The horse was not returned and the plaintiff sued for its value and for the stipulated price. The substantial allegations of the complaint were admitted by the answer. Upon the trial in County Court the defendant’s attorney sought to make the plaintiff elect whether his action was based on negligence or on z the contract of hiring. The county judge quite insistently urged that the complaint should be amended by inserting a cause of action in negligence. The plaintiff’s counsel, appreciating that he already stated a cause of action, was adverse to complying with the request of the court, and it is somewhat uncertain from the record whether the amendment was made, but there was no election required of the plaintiff.

The suggested amendment was entirely unnecessary, and the case was properly tried on the part of the plaintiff in accordance with the complaint in the Justice’s Court. The defendant was a bailee of the plaintiff for hire and it was incumbent upon him to return the horse to the plaintiff at the expiration of the stipulated time of service. It appears that the horse died by reason of an injury received while the defendant was using it. ■ If this injury was not the result of negligence or the want of reasonable care by the defendant, then it was incumbent upon the latter to establish this fact. Primarily he was charged .with the duty of returning the horse, and he must show excuse for not doing so, and that burden was not upon the plaintiff. As has been stated, the case was tided by the plaintiff upon this theory, and it was a fair question of fact and decided adversely to the defendant.

If either of the pleadings was defective it was that of the defendant in failing to allege that the horse was injured and died without his fault, but that question is immaterial, for the case was tried on the merits.

The judgment and order should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  