Long v. Davis
| Decision Date | 30 June 1923 |
| Docket Number | 5242. |
| Parties | LONG ET AL. v. DAVIS. |
| Court | Montana Supreme Court |
Commissioners' Opinion.
Appeal from District Court, Powell County; Geo. B. Winston, Judge.
Action by Nellie Long and another against Fred Davis. From judgment for defendant and an order overruling a motion for a new trial, plaintiffs appeal. Appeal from order dismissed, and judgment reversed, and cause remanded, with directions for new trial.
W. E Keeley, of Deer Lodge, for appellants.
S. P Wilson, of Deer Lodge, for respondent.
In 1918 plaintiffs, Nellie Long and Kenneth Long, and defendant, Fred Davis, owned adjoining lands between which there had been division fences. In November of that year plaintiffs commenced an action against defendant alleging, in substance that defendant did on or about the 15th day of October, 1918 without the consent of or notice to plaintiffs, "willfully, negligently, maliciously, wantonly, unlawfully, deliberately, wrongfully, knowingly, and designedly" remove a large portion of the division fence by reason of which removal the premises of plaintiffs were exposed to and unprotected from cattle in defendant's fields; that after the removal of the division fence defendant willfully placed or caused to be placed in his fields a large number of cattle, knowing that they would enter upon plaintiffs' lands; that plaintiffs had crops on their premises; that defendant knew that the cattle so placed on his premises would enter and injure plaintiffs' crops; that plaintiffs requested defendant to remove the cattle until the crops could be removed or a new fence built, and that plaintiffs offered to pasture the cattle in another inclosure during such time, but that defendant refused either to remove the cattle himself or to permit plaintiffs to do so; that the cattle entered upon and injured plaintiffs' crops to their damage in the sum of $1,400. It was also separately alleged that defendant's acts were done maliciously. On this allegation plaintiffs asked $600 exemplary damages. The issues were made up, the cause tried with a jury in attendance. At the close of the testimony a verdict in favor of defendant was directed, and upon the return thereof judgment was entered for defendant. A motion for a new trial was made and overruled. The appeals are from the judgment and the order overruling the motion for a new trial.
The question presented is whether or not the court erred in directing the verdict for defendant and entering judgment thereon.
A motion for a directed verdict being, in effect, a demurrer to the evidence it raises the question of the legal sufficiency of the evidence to establish the facts upon which a verdict and judgment must be based. Every fact will be deemed proven which the evidence tends to prove. The motion should be denied unless the conclusion necessarily follows as a matter of law that a recovery could not be sustained on any competent theory for at least nominal damages. These rules are too well settled to require citation of authority therefor.
Defendant has made the following analysis of the elements of a cause of action in such a case as the one at bar. He says that the burden was on plaintiff to prove: (a) The removal of the fence in question, by defendant; (b) the placing by him of cattle in such proximity to the fence as to result in their naturally crossing to plaintiffs' lands, or his negligent handling of the cattle so as to naturally result in their crossing the line of the demolished fence; (c) that the cattle did cross to plaintiffs' lands and damage the crops in question. For the purpose of our discussion that analysis will suffice. We are of the opinion that the testimony was sufficient to support a verdict for plaintiffs for at least nominal damages if the jury had so found.
Defendant admitted that he caused the division fence to be removed. He alleged and proved that he had, prior to the time the fence was removed, sold the pasture on his lands to another for the purpose of feeding and pasturing a large number of cattle thereon. Plaintiffs' testimony was that the fence had always turned cattle until it was torn down. In our opinion, when defendant permitted the cattle to be placed on the premises under those circumstances, he became liable for any damage which resulted.
The natural consequence of placing a large number of cattle in a partially unfenced field is to have some or all of them wander away. According to both plaintiffs' and defendant's testimony, this did happen. When the cattle were placed in defendant's field they crossed to plaintiffs' premises, and according to plaintiffs' testimony their crops were injured. Thus, in our opinion, a case was made which entitled plaintiffs to a verdict for nominal damages if the jury so found.
But the testimony did not consist solely of that pointed out above. Plaintiff Kenneth Long testified that after the fence was removed he saw defendant drive cattle from his own to plaintiffs' land. He also testified and defendant admitted that plaintiffs had offered to pasture the cattle in a separate inclosure until their crops could be taken care of. This defendant refused to permit. Plaintiffs' testimony was that, upon being informed of the damage the cattle were doing, defendant replied that he was sorry, but couldn't help it. The trespass of the cattle was...
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