Reddick v. Newburn

• Decision Date: 31 October 1882
• Parties: REDDICK v. NEWBURN, Appellant.
• Court: Missouri Supreme Court

76 Mo. 423

REDDICK

v.NEWBURN, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Andrew Circuit Court.--HON. H. S. KELLEY, Judge.

AFFIRMED.

C. F. Boogher and W. W. Caldwell for appellant.

Sanders & Mercer for respondent.

HOUGH, C. J.

Defendant had possession and control of a pasture in which about fifty head of stock belonging to himself and others, were pastured. This stock broke down the fences dividing the pasture from the adjacent cornfields and entered said fields and destroyed the crops of the plaintiff. Judgment was rendered against the defendant for the entire damage.

The defendant contends that he is liable only for the damage done by his own cattle.

Where cattle are straying upon the commons, or are otherwise at large, and break through a lawful fence and destroy crops, each owner is separately liable for the injury done by his cattle. Partenheimer v. Van Order, 20 Barb. 479; Van Steenburgh v. Tobias, 17 Wend. 562; Auchmuty v. Ham, 1 Denio 495; Chipman v. Palmer, 77 N. Y. 51. But where cattle are placed in the possession of another for agistment, the person having the absolute ownership is not liable for injuries done by them, but the agister is alone liable, unless the owner purposely selected an irresponsible or incompetent or untrustworthy bailee, in which event, he, also, would be liable. Judge Cooley, in his work on Torts, page 340, says: “The liability for the trespasses of animals is imposed, not because of ownership, but because of possession and the duty to care for them. Therefore, if they are in the hands of an agister, or of any one who, by agreement with the owner, has the care and custody of them for the time being, and are suffered to escape and do mischief, he, and not the owner, is the party responsible.” Vide also Rossell v. Cottom, 31 Pa. St. 525; Ward v. Brown, 64 Ill. 307, and Cook v. Morea, 33 Ind. 497.

This rule of the common law is not repealed by section 5653, Revised Statutes, making the owner liable for damages, where his cattle break into any inclosure having a fence of the height required by section 5652. Section 5653, as will be seen from an examination of the entire act, applies only to exterior fences. Similar enactments have been thus construed in other states. Johnson v. Wing, 3 Mich. 163; Brady v. Ball, 14 Ind. 317; Cook v. Morea, 33 Ind. 497; Herold v. Meyers, 20 Iowa 378; Cooley on Torts, 338. Other provisions are made in the act in regard to partition fences, and double damages are given for injuries resulting from a failure to keep them up. r. S., § 5661. Besides, it is not to be supposed that the...