Lee v. Nelms
| Decision Date | 31 July 1876 |
| Citation | 57 Ga. 254 |
| Parties | A. H. LEE, plaintiff in error. v. W. W. Nelms, defendant in error. |
| Court | Georgia Supreme Court |
Trespass. Pleadings. Damages. Master and servant. Evidence. Principal and agent. Before Judge Hall. Newton Superior Court. March Term, 1876.
*Nelms commenced an action of trespass against Lee in the county court of Newton county, by filing the following account:
The defendant pleaded the general issue, and that no stockwas injured on his plantation by his knowledge or consent, except one hog, which was, by agreement between plaintiff and defendant, to be caught with dogs.
The county court rendered judgment for the plaintiff for $100 00, and the case was carried, by appeal, to the superior court. In the latter tribunal the above account was amended so as to read as follows:
"To damage done to stock of plaintiff, to-wit: 2 cows and 4 hogs, by command and permission of defendant, by Jack Lee and John Davis, defendant's servant's at the time on the plantation of defendant in the year 1875, from the 1st of August to the 15th of October, as will appear from the following: " (Same items as above.)
Plaintiff proved the damage to his stock to have been $55 00. He testified that he did not know where his stock was injured, but supposed on defendant's place, as they ranged in that direction; that John Davis told him that he and Jack Dee had hurt witness' stock, and if witness did not keep his stock out of defendant's plantation he would hurt them again; that Jack Lee told him substantially the same thing. That defendant's fence was not more than three and a half feet high; that defendant told witness that if he did not keep his stock out of his plantation he would have them killed, even if he *had to pay for them; that John Davis and Jack Lee were hired by defendant and working on his plantation.
Plaintiff was corroborated by other testimony as to the damage to his stock, and as to the height of defendant's fence.
J. T. Henderson testified that John Davis swore (presumed on trial in the county court) that defendant had told him if any cattle got into his place to rock them out; that he accordingly did catch one hog of plaintiff's with two dogs, and threw him over the fence, but did not hurt him; that he and Jack Lee did rock plaintiff's cattle out of defendant's plantation, from time to time, in the summer of 1875.
Davis and Lee testified that they had driven plaintiff's stock off of defendant's place, but had not injured them; that defendant instructed them not to injure such stock; to rock them if they got into the swamp, but not to hurt them. The former stated that he and Lee had rocked plaintiff's cattle in the swamp, but had not injured them. The latter denied throwing any rocks at the stock at all.
The defendant testified in substance as follows: Davis and Lee worked on his place as servants. Instructed them to drive off any stock which came on his place without hurting them. If cattle went into the swamp to rock them out, but not to injure them. One of the plaintiff's hogs got into the field and into the swamp, and they could not eject him. Told plaintiff to come over next morning at nine o'clock and help get him out as he did not wish to injure the hog. The plaintiff did not come. The hog was caught with dogs and put out. Never made to plaintiff the observation as to killing his...
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Smith v. Myrick
...179 Ga.App. 250, 251-252(1), 345 S.E.2d 886 (1986). Compare Ford Motor Co. v. Williams, 219 Ga. 505, 134 S.E.2d 32 (1963); Lee v. Nelms, 57 Ga. 254(2) (1876). It follows that the trial court did not err in entering judgment against Mrs. Smith, as well as Mr. Smith. 2. All of the remaining e......