Appeal
from Dent Circuit Court.--Hon. L. B. Woodside, Judge.
AFFIRMED.
STATEMENT.--Defendant
is a corporation organized under the laws of this State and
has its principal place of business at Sligo, Dent county
Missouri. It owns a body of land containing twenty-seven
hundred acres, lying in Dent county and the adjoining county
of Crawford, inclosed by a post and wire fence. It is pasture
land and much of it is covered with a thick growth of
underbrush. On May 5, 1904, defendant received from plaintiff
twenty-six steers and four heifers to be pastured on its land
during the season of that year, and executed and delivered to
plaintiff the following receipt and contract respecting the
cattle:
"Received
of J. W. Glassey this day, May 5, 1904, twenty-six steers and
four heifers, branded as follows: 17 'G' on right
hip, 13 'G' on left hip, labeled on right ear. On
which this company has received one dollar per head, being in
advance on the season's pasturing of 1904, balance of one
dollar per head to be paid when cattle are taken out, the
price agreed upon being two dollars per head for the season
of 1904, in consideration of which the Sligo Furnace Company
agrees to allow the aforementioned J. W. Glassey to place the
aforementioned number of cattle on what are known as its
fenced pastures in Crawford and Dent counties, Missouri, and
to employ a man who will give his entire attention to looking
after the stock in said pasture and who will see that the
said stock are properly salted and have access to plenty of
water, at the expense of the Sligo Furnace Company, and it is
further agreed and expressly understood that having complied
with the above the Sligo Furnace Company will not be held
responsible nor guarantee the return of each and every head
of stock, but will use due diligence and give all attention
above enumerated, with the intention of returning to the
rightful owner of stock placed and paid for in its care and
pastures.
"All
stock must be plainly labeled or branded at the owner's
expense and any unruly or breachy stock must be taken away at
the owner's expense, when the said owner has been duly
notified by mail of such unruliness or breachiness, said
notice to be mailed to his last known P. O. address, Cuba
Missouri.
"What
is understood by the season is that stock, when placed there
whether remaining until the close of the season or a part of
the same, shall be paid for as if they remained there the
entire time.
"SLIGO
FURNACE COMPANY,
"(G
L. MORRISON)."
Plaintiff
paid defendant thirty dollars--a dollar per head--in advance
for the pasturage of the cattle. In October following
plaintiff was notified by James Cooksey, an employee of
defendant having charge of the cattle, to come to Sligo and
get his cattle. Plaintiff sent his agent to receive the
cattle. When the round-up of the cattle was made, fourteen
head of the steers were missing and have never been found.
The suit is to recover the value of these fourteen steers.
The
evidence is all one way, that the pasture was well watered
and plenty of salt was kept in it at all times for the
cattle; also that defendant employed James Cooksey to look
after the cattle. In regard to the fence, the defendant's
evidence tends to show that it was composed of white and
post-oak posts, set ten feet apart, upon which were strung
eight strands of barbed wire, making the fence four and
one-half feet high; that on a Saturday in June of 1904, some
person or persons cut the wire in one panel of the fence and
left it open; that this mischief was not discovered by
Cooksey until the following Monday, when he closed the
breach. There is no evidence showing or tending to show at
what date plaintiff's cattle escaped from the pasture.
They were not missed until the round-up in October. After
they were missed, defendant had the pasture and the
surrounding country hunted over to find them but no trace of
them was ever discovered. Cooksey testified that either he or
one of his boys went around the fence at least three times
each week and at no time discovered a breach in the fence
before or after the one made in June.
In
rebuttal plaintiff's evidence tends to show that the
fence had been built for about eight years; that some of the
posts had rotted off and others were burned off, and in
places the staples holding the wire had dropped out and the
wire had been pressed down so that a steer could easily step
over it; and in one other place, where the fence crossed a
ravine, the wire had pulled loose from the posts and sprung
up, leaving a space large enough for a steer to walk under
the wire.
The
court of its own motion gave the following instructions to
the jury:
"1.
The plaintiff has sued the defendant for the loss of certain
cattle which were put in defendant's pasture under
contract made with defendant about May 5, 1904.
"2.
Under said contract the defendant has agreed to employ a man
who should give his entire attention to looking after the
stock in said pastures and who should see that the said stock
were properly salted and had access to plenty of water, and
if it complied with the provisions it was not to be
responsible for the loss of any of said cattle. The said
contract would also require the defendant to maintain the
fences as hereinafter defined.
"3.
If the plaintiff has shown that he put cattle in said
pasture, under said contract, for the season of 1904, and at
the end of said season made demand of defendant for the
return thereof, and if any of said cattle were not so
returned, then it devolves upon the defendant to show and
prove that its failure to return said cattle was not caused
by its failure to comply with the conditions of said contract
to be performed on its part, and, in such case, if it has not
so proven, your verdict should be for the plaintiff on the
first count of the petition.
"4.
Under the said contract the defendant was required to have a
man give his entire attention to looking after said stock and
provide them water and salt, and also to use reasonable
diligence in maintaining the fence around said pasture.
"5.
Reasonable diligence to maintain the fences means that he
should use reasonable diligence to discover any breaks in the
fence through which the cattle might escape, and if any such
breaks occurred to mend the same in a reasonable time after
the discovery of such breaks or after he should have
discovered them by use of reasonable diligence.
"6.
Reasonable diligence and reasonable time, as used in these
instructions, means such diligence and time as a prudent man
should exercise or employ in or about his own affairs.
"7.
If you find for the plaintiff you will assess his...
