Morgan v. Treadwell

• Decision Date: 01 April 1939
• Citation: 126 S.W.2d 888,23 Tenn.App. 100
• Parties: MORGAN v. TREADWELL (two cases).
• Court: Tennessee Court of Appeals

126 S.W.2d 888

23 Tenn.App. 100

MORGAN v. TREADWELL (two cases).

Court of Appeals of Tennessee, Middle Section.

April 1, 1939

Certiorari Denied by Supreme Court December 22, 1938.

Appeal in Error from Circuit Court, Wayne County; W. B. Turner Judge.

Action by Josie Treadwell and by Grady Treadwell, husband of Josie Treadwell, against Joe C. Morgan for injuries and loss of services and hospital, medical, and doctor's bills incurred by him because of injuries inflicted on her by the boar. The judgments were in favor of the plaintiffs, and the defendant appeals in error.

Judgments affirmed.

C. L Boyd, of Waynesboro, for plaintiff in error Morgan.

R. R Haggard, of Waynesboro, for defendants in error Treadwell.

CROWNOVER Judge.

These two actions were tried together, by agreement, in the Circuit Court of Wayne County, as they arose out of the same accident. Two separate transcripts, bills of exceptions assignments of errors, and briefs were filed in this court, but as the facts and legal propositions are the same--the only difference being in the amounts of damages sustained--we have rendered only one opinion.

Mrs. Josie Treadwell sought a recovery of damages against Joe C. Morgan for personal injuries inflicted upon her by a large boar, averred to be the property of the defendant Morgan. It was averred in the declarations that the owner had previous knowledge of the vicious propensity of the animal, and permitted it to run at large.

Her husband, Grady Treadwell, sued to recover for loss of services of his wife, and hospital, medical and doctors' bills incurred by him because of said injuries.

The defendant pleaded the general issue of not guilty in each case.

The cases were tried together to a jury. At the close of the plaintiffs' evidence, and again at the conclusion of all the evidence the defendant moved the court for peremptory instructions in his favor in each case, which motions were by the court overruled. The jury returned verdicts for $750.00 in favor of Mrs. Treadwell, and $500 in favor of Grady Treadwell, and against Joe C. Morgan.

The defendant filed motions for a new trial. On the hearing of the motions the trial judge suggested a remittitur in the sum of $250 in the case of Mrs. Treadwell, which was accepted under protest, but overruled the motions on all other grounds. Judgments were entered accordingly.

The defendant appealed in error to this court in each case, and has assigned errors, which are, in substance, as follows:

(1) There is no evidence to sustain the verdicts, and the court erred in refusing to grant peremptory instructions in favor of the defendant.

(2) The plaintiff Mrs. Treadwell was guilty of contributory negligence.

(3) The verdicts are so excessive as to indicate passion, prejudice, and caprice on the part of the jury.

The plaintiff below, Mrs. Treadwell, did not perfect her appeal in error or assign errors as to the amount of her judgment.

1. The plaintiffs, Mr. and Mrs. Grady Treadwell, and the defendant, Joe C. Morgan, live in the country, in Wayne County, about four miles apart. Between the two places is a woods in which live stock is permitted to run at large, but nobody allows male hogs to run at large.

On October 2, 1936, at about 8:30 in the morning, Mrs. Treadwell went to the spring, which was unenclosed, and about sixty or seventy yards from the house, for a bucket of water. While she was getting the water, a large hog ran towards her, foaming at the mouth. She ran into the spring house. The hog tried to break into the house. Mrs. Treadwell looked out and saw her little five year old daughter starting from the house to the spring. The hog was at the back of the spring house. Mrs. Treadwell left the spring house and ran towards the little girl. The hog ran after her, overtook her, knocked her down, and bit her on the back, the left side, on the leg, and on the knee. She called the dog, which ran the hog away.

The hog was a large sandy colored boar, that weighed between 200 and 300 pounds.

When Mr. Treadwell came home at noon, he called a doctor, who dressed Mrs. Treadwell's wounds.

As the doctor was leaving, he and Treadwell went to the spring and saw, in the fish pond, a large, vicious looking boar, of a light sand color, which Treadwell testified was the same hog he had seen at Joe C. Morgan's home six or eight weeks before.

And Treadwell testified that when he saw the hog at Morgan's it threatened to attack him, and he told Morgan about it, and Morgan admitted, at the time, that the hog belonged to him, and stated that the would later castrate him and make meat of him.

Treadwell, when he saw the hog in the fish pond, got his gun and shot and killed the hog.

He testified that Morgan came and inquired about his wife, and said: "Reckon that was my hog?" and he said: "No reckon about it, I know it was," and Morgan said, "My hog hasn't come home," and he said, "No and he won't for I killed him ***."

Rube Mathis, who lived in the same section, testified that in the fall of 1936, before the County Fair, there was a large sandy colored boar running at large, which threatened to attack him; that he tried to find out whose hog it was; that he asked Morgan about it, and he said it was his hog, and told him to tell Rob Whitehead to put it up and he would come for it. Mathis said he told Morgan somebody would kill the hog, as he acted as if he would fight him.

Joe Ayers and his wife testified that they had done some work at Morgan's place; that he had two male hogs, one old and one young, both sandy colored; that the old hog had tried to attack their child; that the young hog died, and they have not seen the old hog since then.

Granville Treadwell, the thirteen year old son of the Treadwells, testified that the heard the conversation between his father and Morgan in which Morgan stated that his hog had never come home and his father told Morgan that he had killed his hog.

Jim Kelley testified that he wanted to buy a pure bred red Duroc hog; that Morgan told him he had a light red hog that he wanted to get rid of because he wanted to bite; that that conversation was before Mrs. Treadwell was hurt; that he saw the hog that Grady Treadwell...