Ewing v. Rider
| Decision Date | 20 January 1915 |
| Docket Number | 56. |
| Parties | EWING et ux. v. RIDER. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Harford County; Wm. H. Harlan, Judge.
"To be officially reported."
Action by Howard L. Rider against George W. Ewing and wife. From a judgment for plaintiff, defendants appeal. Reversed, and new trial awarded as to both defendants.
Aubrey Pearre, Jr., of Baltimore (Barton, Wilmer & Stewart, of Baltimore, on the brief), for appellants.
Elmer J. Cook, of Towson (Stevenson A. Williams, of Bel Air, on the brief), for appellee.
This action was instituted in the circuit court for Baltimore county, on the 6th day of April, 1912, but upon removal the case was subsequently tried in the circuit court for Harford county and resulted in a verdict for the plaintiff for the sum of $250.
The appellee was the plaintiff below, and he brought this suit against the defendants (husband and wife) to recover for injury and damage to his growing and harvested crops of corn wheat, hay, and grass for the period of four or five years alleged to have been committed by the chickens, and other poultry, of the defendants, as set out in the plaintiff's narr.
The declaration contains three counts. The first is the usual count in trespass. The second alleges that the defendants suffered and allowed to run loose on the lands and crops of the plaintiff, where the same lies adjacent to the land of the defendants on the north side of the Dover road in the Eighth election district of Baltimore county, large flocks of turkeys, chickens, ducks, and geese, to the number of at least 150, and that said turkeys, chickens, ducks, and geese did each year for the past four or five years destroy at least four or five acres of the growing crops of the plaintiff; that the plaintiff repeatedly notified the defendants during the said four or five years to keep said turkeys, chickens, ducks, and geese off the said lands of the plaintiff, but the defendants wholly neglected so to do, to the great injury and damage of the plaintiff. The third count is identical with the second, except it charges that large quantities of harvested crops while cut and remaining in the fields of the plaintiff were each year for the past four or five years destroyed by the poultry of the defendants.
The plaintiff, upon demand, filed a bill of particulars setting out the damages claimed under each count of the declaration specially naming the years in which the damage occurred, and fixing it at the sum of $689.
The defendants for joint and several answer to the declaration pleaded: First, that they did not commit the wrong alleged; and, second, that the alleged cause of action and the damages for the years 1908 and 1909 did not accrue within three years before the suit. A trial was had upon a replication to these pleas, and from a judgment against both of the defendants, this appeal is taken.
The questions for our decision are presented upon two exceptions and were taken to the action of the trial court: First, in its ruling upon the admissibility of evidence; and, second, upon the prayers.
The first exception requires but little discussion, and there can be no difficulty in disposing of it.
The defendant George W. Ewing testified upon cross-examination, as set out in the exception, that he had no profession, no business occupation, but is an alleged farmer on 48 acres. He stated--he meant by this--he farmed the place for the benefit of the place, that the whole 48 acres is farmed, and that he keeps hunting horses. He was then asked: "How many do you keep?" The question was objected to by the defendants and the objection being overruled, the witness answered that he kept four such horses, and this constitutes the entire exception. While it is difficult to perceive the relevancy of a question of this kind to the issues of the case, it is clear that the answer could not have injured the defendants. The witness had testified, without objection, that he kept hunting horses, and the reply that he kept four such horses could have no prejudicial bearing upon the case. Even if the ruling could be held to be error, it manifestly would be only harmless error, for which a reversal of the judgment would not be granted. The second exception presents the rulings of the court upon the prayers.
The plaintiff offered no prayers, but the defendants presented 13. Of these, the court granted the seventh and eighth, and refused the rest. The rulings upon the rejected prayers form the basis of this exception.
By the eighth granted prayer, the jury was properly instructed that under the issues joined there was no legally sufficient evidence upon which the plaintiff could recover for any damage accruing to him prior to the 6th of April, 1909. The suit was instituted on the 6th of April, 1912, and the statute of limitations, under the pleadings and evidence, was a clear bar to the recovery of any damages prior to the 6th of April, 1909, as directed in the eighth prayer.
The propositions contained in the second and fifth prayers of the defendants were fully covered by their eighth prayer, and no injury resulted from their rejection.
The third prayer prevented the recovery of any damages for the whole of the year 1909, if any, as against the defendant George W. Ewing, whereas limitations only applied up to April 6, 1909, as set out in the eighth granted prayer. The third prayer was therefore properly refused.
The first, fourth, sixth, ninth, tenth, eleventh, twelfth, and thirteenth prayers offered on the part of the defendants were demurrers to the evidence, and by them the court was, in, substance, asked to instruct the jury: First, that there was no evidence in the case legally sufficient to entitle the plaintiff to recover any damage whatever for the alleged injury to and destruction of the crops by the defendants' poultry; and, secondly, if any recovery at all, the plaintiff was limited to no more than nominal damages.
As the first prayer directly presented the question of the liability of Mrs. Ewing for the damages sought to be recovéred, we will first consider the rulings of the court below upon this branch of the case.
We have carefully examined the evidence set out in the record now before us, and are unable to agree with the ruling of the court below in rejecting this prayer, but we are of opinion that the jury should have been instructed, under the pleadings and evidence in the case, there was no evidence legally sufficient to entitle the plaintiff to recover against her, and that a verdict must be in her favor. There was no evidence legally sufficient to show that Mrs. Ewing owned any of the poultry, or was in any way responsible for their care and custody at the time of the alleged trespass.
The plaintiff testified that Mr....
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