Kendrick v. Healy

• Decision Date: 05 October 1920
• Docket Number: 949
• Citation: 192 P. 601,27 Wyo. 123
• Parties: KENDRICK v. HEALY
• Court: Wyoming Supreme Court

192 P. 601

27 Wyo. 123

KENDRICK v. HEALY

No. 949

Supreme Court of Wyoming

October 5, 1920

See also 26 Wyo. 261; 183 P. 37

APPEAL from the District Court, Johnson County, HON. JAMES H BURGESS, Judge.

Action by John B. Kendrick against Patrick Healy, Jr., and Alexander Healy, co-partners doing business under the firm name of Healy Brothers, to recover damages alleged to have been caused by trespassing sheep. Judgment for plaintiff and defendant appeals.

Affirmed.

Hill and Griggs, and E. E. Enterline, for Appellants.

The case was presented by plaintiff in the trial court upon the theory that defendants were bailees of the hay in question. It was sought by the plaintiff during the trial to fix responsibility upon the defendants for the care of the hay plaintiff declining to assume any responsibility whatever for the care of the hay at the time of the alleged trespass; (5 Cyc. 165; 3 R. C. L. 72); there had been no delivery or acceptance by defendants; at the trial, plaintiff amended his petition by interlineation; thereunder a mass of testimony was received with reference to the character of the fence surrounding the hay stacks, it being the apparent purpose to show that the stacks were surrounded by a lawful fence as defined by Sec. 2578 C. S. 1910, Chapter 18, Laws 1917. This was received over objection of defendants and was prejudicial; damages in such case being limited to horses mules and cattle who breach a lawful fence, 2581 C. S. 1910.

The court erred in admitting testimony of witness Duffy with reference to hay on the Redman land; the court erred in excluding cross examination of witness Duffy which was material on the question of possession; defendants were under no obligation to keep their sheep away from the vicinity of the stack yards since they were entitled to possession of all parts of the premises; plaintiff purchased the hay at $ 3.00 per ton; there was evidence that much of it was spoiled and worthless; plaintiff sued for $ 20 per ton which was allowed by the jury; neglect of the herder to keep the sheep away from stacks did not establish willful trespass. The agreement between the Northern Wyoming Land Co. and Hoffman was in writing and was therefore the best evidence of the nature of plaintiff's possession; The court's attitude toward the witness Hoffman was prejudicial to defendants and a clear invasion of the province of the jury; a number of instructions given on request of plaintiff were highly prejudicial to defendants and defendants were prejudiced by the refusal of the trial court to give the instructions requested by defendants; it devolved upon plaintiff to make some effort to prevent the alleged damage, (13 Cyc. 71); to use reasonable efforts to lessen the result in damage, (8 R. C. L. 446; Sweeney v. R. R. Co., 25 Mont. 543; Devine Min. Co. 1. Mallin, 165 P. 1113); the court instructed in substance that it was defendants' duty to restrain their sheep from going upon plaintiff's hay and that plaintiff was not required to fence or protect his hay against defendants' sheep; this instruction was inconsistent with the other instruction given on the question of trespass. (Eckman v. Westman, 20 Wyo. 143; P. 89); defendants' possession of the land was clearly established, and defendants were entitled to an instruction as to their right of possession. (Kahn v. Ins. Co., 4 Wyo. 419); plaintiff was allowed $ 845.00 for 13 head of cattle alleged to have died for want of feed, when, as a matter of fact, it was shown that plaintiff's cattle had foot and mouth disease, and there was no proof that any cattle had died for want of feed, the verdict of the jury having undoubtedly been influenced by prejudice and passion, and should be set aside.

Metz & Sackett, and Robert Rose, for Respondent.

Plaintiff's action for damages caused by trespassing sheep of defendants'; answer first denies generally, and offers affirmative defenses:

1. An exclusive right to the land where the hay was stacked.

2. The stacks were unfenced.

3. Absence of fence precludes the remedy for loss of the hay.

4. Plaintiff removed the fence.

5. It was impossible to keep the sheep away from the hay.

6. The hay was worthless.

The second defense, which includes the foregoing points practically admits intentional trespass; it is admitted that the fence question is immaterial as sheep could pass through a lawful fence; testimony showed that plaintiff's hay was not invaded by the sheep until defendants' hay was all gone and no hay could be obtained in the community; it never was a custom for sheep to run at large; the only fence ever required in the west is against horses and cattle; the right of stock to run at large does not apply to sheep in the care of a herder. (Willard v. Mathesus, 7 Colo. 76; Healy v. Smith, 14 Wyo. 287; Light v. U. S.., 31 SCR. 488, 2 col. 477 foot 2nd col. and top 1st col. 488; Lazarus v. Phelps, 14 SCR. 478, foot 1st col. and 2nd col, arguendo; Cosgriff v. Miller, 10 Wyo. 216-17, 223, 225; Thompson v. Corpstein, 52 Cal. 653); plaintiff had a license from defendant to keep his hay on the premises; the evidence clearly established a license; defendants' sheep were herded away at night and brought back to plaintiff's hay in the morning and were herded into and upon the stacks; the loss of plaintiff's hay also resulted in the loss of about 25 head of cattle; the court placed the burden upon plaintiff of proving that all damages were caused by the intentional trespass; this was certainly as far as the court could go in favor of defendant; the court instructed the jury that defendants had a right to run their sheep on the premises and were not required to fence plaintiff's hay, but were required not to drive or intentionally permit their sheep to destroy plaintiff's hay; defendants could not well complain of the instructions; the court instructed the jury that it was immaterial whether the stacks were enclosed by a lawful fence or any fence at all, so long as it was shown that defendants intentionally permitted their sheep to go upon and eat and destroy plaintiff's hay. There was nothing misleading about this instruction; there was a clear preponderence of evidence establishing intentional trespass.

POTTER, Justice. BEARD, C. J., and BLYDENBURGH, J., concur.

OPINION

POTTER, Justice.

This is an action for damages alleged to have been caused by sheep of the defendants eating and destroying certain hay owned and held in stack by the plaintiff upon certain inclosed premises described in the petition. There was a jury trial, resulting in a verdict and judgment in favor of the plaintiff for the full amount claimed, and the defendants have appealed.

The material averments of the petition, including amendments allowed upon the trial are: That in conducting the plaintiff's business of raising, breeding, buying, selling, ranging, pasturing and feeding cattle in Johnson and Sheridan counties, in this State, it is necessary to buy, own, hold and feed large quantities of hay, especially in the winter time. That for the purpose of feeding said cattle during the winter of 1916-1917 he purchased, owned and held in stack 150 tons of hay on certain described premises. That said premises were surrounded by a lawful fence, and said stacks were surrounded by good and lawful fences maintained by the plaintiff. That during said winter the defendants permitted their sheep in charge of a herder to run upon said hay, and to eat, trample down and destroy it, and that said defendants intentionally and wrongfully drove their said sheep upon said hay and wrongfully fed a part of it to said sheep, and wrongfully caused the sheep to trample down, eat and destroy seventy-five (75) tons of said hay, which was of the reasonable value of Twenty Dollars ($ 20.00) per ton, and of the total value of fifteen hundred dollars ($ 1500.00).

That by reason of the loss of said hay during the said winter, thirteen head of plaintiff's cattle died, each of the value of sixty-five dollars ($ 65.00), and of the total value of eight hundred forty-five dollars ($ 845.00). That by reason of the aforesaid wrongful and unlawful acts of the said defendants, the plaintiff has sustained damages in the total sum of twenty-three hundred forty-five dollars ($ 2345.00), no part of which has been paid. It is also alleged that to preserve the remainder of said hay it was necessary to begin an injunction suit, "now pending in this court. "

The answer denies generally each and every allegation of the petition, and for a second defense alleges in substance: That the defendants were engaged in the business of raising growing, marketing, pasturing and feeding sheep in Johnson County, Wyoming, and purchased hay and pasture for use in conducting said business. That in the fall of 1916 they purchased from W. C. Hoffman & Son, and the Northern Wyoming Land Company, certain hay then stacked and located upon the premises described in plaintiff's petition, and also leased from them, they then being the owners thereof, all of the pasture located upon said premises, and by the terms of the lease, became entitled to the full, complete and exclusive possession of all of the said premises, and entitled to run and range their sheep thereon to the exclusion of any other person or persons, to and including April 1, 1917. That plaintiff had no right to the possession of any portion of the premises, but knew that defendants were lessees of and entitled to the exclusive possession thereof and entitled to run and range their sheep thereon. That plaintiff negligently failed to fence his haystacks with a lawful or any fence, although the defendants repeatedly and frequently demanded that he care for his said hay and take steps to prevent loss thereto. That as a result of the...