Adams v. Hall

• Citation: 2 Vt. 9
• Parties: BENJAMIN ADAMS v. ALPHEUS HALL and CHARLES COOTWIRE
• Decision Date: 01 January 1829
• Court: United States State Supreme Court of Vermont

2 Vt. 9

BENJAMIN ADAMS v. ALPHEUS HALL and CHARLES COOTWIRE

Supreme Court of Vermont, Grand-Isle

January, 1829

This was an action of Trespass, in which the Plaintiff declared against the defendants, jointly, for that two dogs of the defendants worried and killed the sheep of the plaintiff. The action was predicated upon the sixth section of an act entitled " an act more effectually to prevent trespasses in certain cases." The defendants pleaded not guilty and issue was joined to the country. It appears, by the exceptions allowed by the judges of the County Court on the trial of said action, that the plaintiff's testimony tended to show, not that the defendants were joint owners of the two dogs, but that Hall was the separate owner of one of them, and that Cootwire was the separate owner of the other and for want of some testimony tending to show a joint ownership, a non-suit was ordered by the Court. Exceptions were taken to this decision, and allowed, and the cause was removed to this Court for a hearing upon the exceptions accompanied with a motion to set aside the non-suit, and grant a new trial.

Judgment affirmed with cost.

Mr. Allen, for the plaintiff, contended that the nonsuit ought not to have been ordered.

1st. In the action of Trespass, if too many are made defendants, the plaintiff must recover against as many as he can prove to be guilty; and the rest may be acquitted. 3 East's Rep. 62, Govett v. Radnidge et al.

2d. The evidence is sufficient to support the action against both defendants; because, the damage being entire, the action ought to be so too. If two are concerned in committing a Trespass upon the property or person of another, no objection can be raised to their being joined in an action for the recovery of damages. If two shall at one and the same time beat another, whereby he shall receive a single and entire injury, the action will lie against both, on the ground that the damage is entire. If by the negligence of two persons, they shall suffer their dogs to do single and entire injury to the property of another, I see no reason why the action will not lie against both. 2 Saund. 117, c.--Cowp. 612, Rex v. Clark. What injury can arise from the joinder of action in this case? If separate actions should be brought, the damages would be entire; and one satisfaction would be a satisfaction as to both, except that two bills of cost could be collected. What good objection, then, can there be to the joining of both in the same action? It would lessen the number of suits, and curtail expenses and costs.

J. C. Thompson, for the defendants. This was an action of trespass to recover damages for an injury done to sheep by two dogs owned by defendants jointly. Evidence was offered to prove, that each defendant owned one dog, and that the two dogs were, at one and the same time, jointly concerned in killing the sheep.

1. The defendant, Hall, contends that the evidence offered was improper, because it did not tend to prove the declaration.

2. The defendants could not be jointly liable unless they were joint owners of the dogs, or were jointly concerned in procuring or permitting the injury.

3. One man cannot be made liable for an injury done by another man's dog, unless he has some agency in effecting the injury; and this agency cannot be presumed from any thing but the fact that he has a property in the dog.--2 Conn. 206, Russell v. Hawkins et al. The statute changes the remedy from Case to Trespass. If the action were Case, could the neglect of one defendant, in not restraining his dog, be the neglect of the other? Or could either be responsible for the neglect of the other? Two men could not be jointly liable for the joint act of their respective servants, much less their dogs.

H. Allen, for plaintiff.

J. C. Thompson, for defendants.

OPINION

HUTCHINSON, J.

If the testimony adduced by the plaintiff on trial was of a character adapted to the issue, so that gaining credit with the jury, it would entitle the plaintiff to a verdict, then the nonsuit must be set aside and a new trial granted. If otherwise, the nonsuit must stand. The section of the statute, upon which this action is founded, reads as follows, to wit: " If any...