Leach v. Lynch

• Decision Date: 02 May 1910
• Citation: 128 S.W. 795,144 Mo. App. 391
• Parties: LEACH v. LYNCH.
• Court: Missouri Court of Appeals

128 S.W. 795

144 Mo. App. 391

LEACH v. LYNCH.

Springfield Court of Appeals. Missouri.

May 2, 1910.

Rehearing Denied June 6, 1910.

1. JUSTICES OF THE PEACE (§ 91)—PROCEDURE IN CIVIL CASES—PLEADING—SUFFICIENCY OF STATEMENT.

In an action brought in a justice's court and appealed to the circuit court, a statement charging that defendant, on a day specified, did "dog, weary, mistreat, and abuse and break the leg of a goat," belonging to plaintiff, sufficiently alleged that the injury was wrongful so as to support a judgment for plaintiff.

2. ANIMALS (§ 52)—RUNNING AT LARGE—INJURING.

Domestic animals have a right to run at large until after it has been determined by an election held under Rev. St. 1899, §§ 4777-4783 (Ann. St. 1906, pp. 2585-2588), whether they shall be restrained, and before such election the animals are not trespassers on the land of a person other than the owner who does not have a proper fence, but whenever they go upon the premises of another the owner has the right to remove them, but he must use proper care not to injure them.

3. ANIMALS (§ 100)—INJURIES—ACTIONS— DEFENSES.

In an action for injury to a goat, inflicted while defendant was attempting to remove the goat from his premises, plaintiff makes out his case by proving the injury, and that the injury was purely an accident which occurred while defendant was endeavoring to remove the goat from the premises is a matter of defense, the burden of proving which is on defendant.

4. ANIMALS (§ 100)—INJURIES—ACTION—INSTRUCTION.

In an action for injury to a goat, defendant testified that the goat came upon his premises, that in endeavoring to get it off the premises it ran into a pool of water, that defendant took it by the horns and led it up to the fence and picked it up and started to throw it over the fence, that it struggled and threw itself back, that in putting the goat over the fence it stuck, and after putting it down he saw that it was crippled, and that plaintiff had instructed him to dog his goats and drive them from the premises. Defendant requested instructions that, if plaintiff had instructed defendant to dog his goats and drive them from his premises, the defendant would not be liable if he used reasonable care to prevent injury; that, if the goat belonged to a class of animals not properly restrained by fences, defendant would not be liable if he used reasonable care, or unless he wantonly or maliciously injured the goat; and that defendant was not bound to fence against animals that are not restrainable by common fences, and he was not liable unless he injured the goat intentionally and maliciously. Held, that the instructions were properly refused, as the evidence did not tend to show that the injury occurred without defendant's fault.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Action by C. P. Leach against James A. Lynch. Judgment for plaintiff, and defendant appeals. Affirmed.

J. N. Burroughs, for appellant. Green & Green, for respondent.

COX, J.

This action originated in a justice's court upon the following statement: "Now comes C. P. Leach, and upon oath says that one James A. Lynch did, on the 11th day of April, 1909, dog, weary, mistreat, and abuse and break the leg of a goat belonging to C. P. Leach, for which he demands a judgment for $5.00 and cost. C. P. Leach. Dated this 14th day of April, 1909. Sworn to before me this the 14th day of April, 1909. J. C. Fare, J. P." On appeal to the circuit court the case was tried before a jury, and plaintiff obtained a verdict for $1, and defendant has appealed to this court. In the motion for a new trial, errors are alleged in the giving and refusing of instructions, and charge is made that the verdict is against the law and the evidence. In the assignment of errors it is contended that the court erred in giving and refusing instructions, and in overruling defendant's motion for a new trial.

In his brief and argument appellant raises the question for the first time in this court that the statement filed before the justice is insufficient to support the verdict. In support of this contention, he takes the position that the statement is not an action under the statute for failure to maintain a lawful fence; that if it be denominated an "action at common law for trespass" it is not good because no negligence is alleged. We do not think this contention is good at this time. The allegation that the defendant did "dog, weary, mistreat, and abuse and break the leg of a goat" belonging to plaintiff we think a sufficient allegation that the injury was wrongful, and that is all that is required. The evidence discloses that the...