Phillips v. Smoot

• Decision Date: 31 March 1852
• Citation: 15 Mo. 598
• Parties: PHILLIPS v. SMOOT.
• Court: Missouri Supreme Court

15 Mo. 598

PHILLIPS

v.SMOOT.

Supreme Court of Missouri.

March Term, 1852.

APPEAL FROM MARION CIRCUIT COURT.

H. S. LIPSCOMB, for Appellant. The court below erred in refusing instructions asked by defendant. Because, unless the plaintiff prove, that he was, at the time of the alleged trespass, in possession, actual or constructive, he cannot recover. There is no proof of possession in plaintiff, but merely that permission was given him, for an uncertain period of time, to depasture his cattle in the field. 3 Stark. Ev. 1089 to 1103; 1 Mo. R. 486, Perry v. Block; 7 Mo. R. 162, Davis v. Wood. But if possession is not necessary, under the statute, to sustain this action, it is certainly necessary in order to the recovery of the penalty, to-wit: $5 00, for throwing down and leaving down a fence; for he only who is in possession, can be injured by the throwing down. The only act of throwing down and leaving down, that was proved, was on the 2nd of May, 1850, as admitted by the defendant. What injury resulted to plaintiff from this? There is not the slightest evidence that any did. On the contrary, the evidence is clear, positive and uncontradicted, that none did. The evidence proves, that the cattle were out of the field more than two hours before the fence was pulled down. The verdict is against evidence. Where the verdict is clearly against evidence, or even where there is great preponderance of evidence on the side of the party against whom the verdict is rendered, this court will interfere. 4 Mo. R. 295, Oldham v. Henderson; 8 Mo. R. 431, Todd et al. v. Boone County; 8 Mo. R. 446, Wilson v. Burks There is another view of this case, conclusive in Smoot's favor. If the party, whose fence is pulled down, can protect himself from injury at a trifling expense, or by reasonable exertion, he is bound to do so. He can recover only for such damage as by reasonable endeavors he could not prevent. 3 Greenl.

Ev. 216; 17 Pick. 284, Loker v. Damon. The plaintiff was present when his fence was pulled down; if he put it up he was not injured even if his cattle were in the field. If he did not put it up he failed to do his duty. With very slight exertion he could have put it up and prevented the injury he complains of. The person who would not put up a fence under such circumstances either knows that he will not be injured if it is not done, or is very anxious to be injured in order that he may sue his neighbor and gratify improper feelings.

ANDERSON & RUSH, for Respondent. 1. Plaintiff contends that the court below did not err in giving the first instruction prayed for by the plaintiff, and that said instruction accords with the second section of an act entitled Trespass, Rev. Code 1845. 2. The court decided the law correctly, in giving the second instruction of the plaintiff, and could not have instructed more strongly in favor of defendant, without committing error. Rev. Code 1845, p. 362. 3. The court did not err in refusing to give the instructions prayed for by defendant, because said instructions conflict with the statute upon which this action is founded. Rev. Code 1845, p. 362. 4. The court did not err in refusing said...