Brown v. Arkebauer
| Decision Date | 06 October 1930 |
| Docket Number | 154 |
| Parties | BROWN v. ARKEBAUER |
| Court | Arkansas Supreme Court |
Appeal from Crawford Circuit Court; J. O. Kincannon, Judge affirmed.
Judgment affirmed.
W. H Dunblazier, for appellant.
E. D Chastain, for appellee.
The appellees were the owners of 2 3/4 acres of land planted in strawberries into which the cattle of the appellant, to the number of 150 or 200 head, were allowed to pasture, completely destroying the berries. Appellees brought suit in the court below and recovered the sum of $ 175 as damages. The appellant has duly prosecuted this appeal.
On a trial of the case the court refused to permit the introduction of testimony offered on the part of the appellant tending to show the condition of the fence around the berry patch for the reason that that territory was included in a fencing district created by order of the county court, in which order the running at large of cattle was prohibited. This ruling of the court is assigned as error, the contention being that the county court was without authority to make the order. The attack made upon the validity of the order is a collateral one, and therefore, as the court had jurisdiction of the subject-matter, every presumption will be indulged in favor of the validity of the judgment. Hooper v. Wist, 138 Ark. 289, 211 S.W. 143. The court did not err in its ruling.
It is also contended that the court erred in the giving of instructions numbered one and two. Instruction No. 1 in effect told the jury that if the defendant (appellant) "permitted his cattle to go upon the berry patch" by reason of which damage resulted, they should find for the plaintiff (appellees) unless the plaintiff agreed to keep up the fences. This instruction was more favorable to the defendant than the pleading or proof warranted, for, as the territory was in the fencing district, it was the duty of the defendant to keep his cattle inclosed.
Instruction No. 2 related to the measure of damages which we will discuss in disposing of the contention made by the appellant that the evidence was not sufficient to sustain the verdict.
There was testimony to the effect that on or about the 5th day of May the berries appeared to be very promising, the plants having heavy foliage and buds, and the berries beginning to turn. The appellee who grew the berries testified that before they were destroyed by appellant's cattle the berries were beginning to ripen, and he was preparing to pick them the week...
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