Jones v. Duncan

• Decision Date: 07 May 1912
• Citation: 58 So. 972,4 Ala.App. 388
• Parties: JONES v. DUNCAN.
• Court: Alabama Court of Appeals

58 So. 972

4 Ala.App. 388

JONES v. DUNCAN.

Court of Appeals of Alabama

May 7, 1912

Appeal from Circuit Court, St. Clair County; J. E. Blackwood, Judge.

Action by William T. Jones against John A. Duncan for damages to crop, caused by the defendant permitting his turkeys and ducks to run at large. Judgment for defendant, and plaintiff appeals. Affirmed.

John W Inzer, of Ashville, for appellant.

James A. Embry, of Ashville, for appellee.

WALKER, P.J.

The plaintiff claimed damages for alleged injury to his crop of corn caused by the defendant's "covey of turkeys and ducks," which, as alleged in the two counts of the complaint, respectively, the defendant knowingly, carelessly and negligently permitted to use upon the plaintiff's land, and knowingly, carelessly, wrongfully, and negligently permitted and allowed to run at large. Neither count of the complaint averred that the land of the plaintiff was inclosed by a lawful fence (Code, § 4242), or that it was within a stock law district. If the recital contained in the judgment entry that "it was admitted in open court that the trespass complained of occurred in a stock law district or a ______ in which stock are prohibited from running at large," could be given the effect of an amendment of or addition to the averments of the complaint, still it is not made to appear that the land in question was either in a stock law district established under the provisions of the general statute on the subject (Code, § 5881 et seq.) or in such a district established under a local or special law which affected the right to permit the running at large of anything other than stock. It is not claimed that the word "stock," as used in such a connection, is to be understood as embracing domestic fowls, such as turkeys and ducks.

It is settled in this state that, in the absence of a statute governing the matter, the owner of domestic animals may suffer them to run at large, and is not liable for damages committed by them upon the uninclosed lands of another. Wilhite v. Speakman, 79 Ala. 400; Hurd v Lacy, 93 Ala. 427, 9 So. 378, 30 Am. St. Rep. 61; Ryall v. Allen, 143 Ala. 222, 38 So. 851; Joiner v. Winston, 68 Ala. 129. The averments of the complaint not showing that the plaintiff was within the protection of any statute on the subject, it was subject to the demurrer interposed to it. As it is not made to appear in any way that the land of the plaintiff upon which...