Pelham v. Spears
| Decision Date | 05 March 1931 |
| Docket Number | 4 Div. 540. |
| Parties | PELHAM v. SPEARS. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.
Action by A. Pelham against J. J. Spears. Judgment sustaining a demurrer to the complaint, and plaintiff appeals. Transferred from Court of Appeals.
Affirmed.
E. C Boswell, of Geneva, for appellant.
A. A Smith, of Hartford, for appellee.
The common-law rule that animals must be on owner's own premises does not obtain in this state. The rule is rather reversed and animals are permitted to run at large unless prohibited by statute. Means v. Morgan, 2 Ala. App. 547, 56 So. 759; M. & O. R. R. v. Williams, 53 Ala 595; Hurd v. Lacy, 93 Ala. 427, 9 So. 378, 30 Am St. Rep. 61. The complaint, however, charges that the cow was unlawfully on the highway through the negligence of the defendant, that is, "contra formam statuti," (contrary to the form of the statute) meaning, we suppose, in violation of the stock law. If the point of injury was within the stock law district, this fact should perhaps have been specifically averred, Jones v. Duncan, 4 Ala. App. 388, 58 So. 972, but we will assume, only for the purpose of deciding this case, that the complaint brings the territory within a stock district, yet it nevertheless shows upon its face that the cow was not unlawfully upon the highway. In other words, section 10215 of the Code, which is a part of the stock law, makes it unlawful to permit stock to go upon the premises of another and not upon the highway. Means v. Morgan, supra; Colvin v. Sutherland, 32 Mo.App. 77.
Therefore the complaint merely charges the defendant with negligence in permitting the cow to be at a point where she had the right to be and there could be no negligence on the part of the defendant in this respect unless the animal had such propensities as would probably result in the injuries charged, and that said propensities were known to the owner. Even if the owner negligently permitted the cow to be on the highway, as charged in the complaint, the said negligence must have been connected with the damage and it should be averred and proved that the cow was of such a nature that the damage done was likely to arise from such an animal and the owner knew of its propensity. Fox v. Koehnig, 190 Wis. 528, 209 N.W. 708, 49 A. L. R. 903. The present complaint, while charging negligence, fails to establish a duty...
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Scott v. Dunn
...the general rules of common law negligence govern damages caused by livestock to an automobile, the appellants cite Pelham v. Spears, 222 Ala. 365, 132 So. 886 (1931). They state that the complaint in Pelham was dismissed because plaintiff failed to aver that "the cow was of such a nature t......
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Pennyan v. Alexander
...alleged are sufficient to show that the appellee's negligence was the proximate cause of the injury. In the case of Pelham v. Spears, 1931, 222 Ala. 365, 132 So. 886, 887, the Court had under consideration a demurrer to a complaint very similar to the amended declaration in the case that we......
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Randle v. Payne
...as to trespass by cattle. This Act was designed to repeal the doctrine of the statutes and decisional law illustrated by Pelham v. Spears, 222 Ala. 365, 132 So. 886. For a collection of decisions, see Annotation 59 A.L.R.2d 1328. 'Going at large' is what is made unlawful; the statute ignore......
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Owen v. Hampson
...was unlawfully in the street is not tantamount to an allegation that it was there in violation of a statute or ordinance. Pelham v. Spears, 222 Ala. 365, 132 So. 886. If the city of Anniston has an ordinance to the effect that the owner or keeper of a dog must keep it out of the public stre......