King v. Ruth

• Decision Date: 20 October 1924
• Docket Number: 23136
• Citation: 101 So. 500,136 Miss. 377
• Court: Mississippi Supreme Court
• Parties: KING v. RUTH. [*]

101 So. 500

136 Miss. 377

KING v. RUTH. ^[*]

No. 23136

Supreme Court of Mississippi

October 20, 1924

Division A

ANIMALS. Each separate owner of animals causing Injury liable only for that caused by his own, and proof is essential to support recovery of more than nominal damages.

Where animals separately owned unite in committing an injury, each owner is responsible only for the damage done by his animal and, in a case wherein one only of such owners is sued, he can be held liable for nominal damages only in the absence of such evidence that will enable the jury to determine the amount of the damage {hat was inflicted by his animal.

HON. W A. ROANE, Judge.

APPEAL from circuit court of Calhoun county, HON. W. A. ROANE Judge.

Action by A. J. Ruth against J. C. King. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Reversed and remanded.

H. H. Creekmore, for appellants.

On the trial there was no testimony as to whether the land on which the corn, alleged to have been damaged, stood, was in a stock law district. Nor did the testimony disclose whether this land was inclosed by a lawful fence. On both these questions there is absolute lack of testimony.

No one undertook to estimate or guess at the amount of corn destroyed by the defendant's hogs, and the proof showed, without conflict, that other hogs had been in the corn during the fall and that large numbers of hogs ranged in the vicinity of the field in the bottoms. Testimony as to opportunity of other hogs to damage the corn was uncontradicted.

I. The court gave but one charge to the jury for the plaintiff. This charge authorized the jury to find for the plaintiff and assess the damages, as they reasonably believed plaintiff is entitled to, not to exceed one hundred dollars, the amount sued for, if they believe from the preponderance of the evidence that the defendant allowed his hogs to eat and destroy the corn of the plaintiff. The instruction given for the plaintiff was error because it authorized the jury to find against the plaintiff such damage as the jury reasonably believed plaintiff was entitled to. It did not require that this belief, as to the amount of damage, should come from the testimony, nor did it require that the damage had been done by the defendant's hogs, and it wholly disregarded the fact that the plaintiff had not shown that he had a lawful fence, or that his land was in a stock law district. We respectfully insist that for the giving of this instruction alone the judgment appealed from should be reversed.

II. The peremptory instruction asked for by the defendant should have been granted because the land of the plaintiff was not enclosed by a lawful fence, nor was it in a stock law district, and the running at large of the hogs of the defendant did not make him liable for damages for crops destroyed by them under the existing circumstances.

At common law, the owner of animals was required to keep them from trespassing upon the land of others, but this common-law rule has no application in Mississippi and has never had. Anderson v. Locke, 64 Miss. 283; N. O. & G. N. R. R. Co. v. Filbrick, 46 Miss. 578. This whole subject is within the power of the legislature and it has acted relative thereto. Section 4539, Hemingway's Code, defines a lawful fence, and section 4541, Hemingway's Code, makes the owner of animals trespassing through a lawful fence liable in damages for all injuries committed by such animals and given a lien on the animals for the damages.

III. There was no basis in the testimony for the assessment of the amount of damages intelligently. Possibly there was some basis from which a jury might have estimated the total amount of damage done to the corn, but no witness undertook to say how much of this damage was done by the hogs of the plaintiff or how much was done by the hogs of others. As to all these matters, the jury was absolutely without guide and all they could do in determining the amount of damage done by the hogs of the defendant, was to guess. State v. Widman, 112 Miss. 1. And where, from the testimony, it cannot be told what part of the total damages done has been done by the defendant's wrong, a peremptory instruction should be given in favor of the defendant. Hightower v. Henry, 85 Miss. 476.

R. H. Knox, for appellee.

It is claimed by the appellant that perhaps all the hogs that trespassed on and destroyed this corn did not belong to him. The defendant himself claimed that some of the hogs belonged to his boy; some of the other witnesses claimed that hogs other than his were in the corn. The jury heard all of the facts in the case and fixed the damages done by King's hogs at one hundred dollars.

In Montgomery v. Handy, 62 Miss. 16, the court held that one is "equally responsible for damages inflicted by the stock of his brother, which by permission, had been mingled with his own." It is insisted that instruction No. 1 given for the plaintiff, was erroneous because it...