Prestwood v. Bohannon, 7 Div. 238

• Decision Date: 02 February 1937
• Docket Number: 7 Div. 238
• Citation: Prestwood v. Bohannon, 27 Ala.App. 340, 172 So. 349 (Ala. App. 1937)
• Parties: PRESTWOOD v. BOHANNON.
• Court: Alabama Court of Appeals

172 So. 349

27 Ala.App. 340

PRESTWOOD v. BOHANNON.

7 Div. 238

Court of Appeals of Alabama

February 2, 1937

Appeal from De Kalb County Court; L.L. Crawford, Judge.

Action for trespass to land by I.J. Bohannon against Will Prestwood. From a judgment for plaintiff, defendant appeals.

Affirmed.

Scott &amp Dawson, of Fort Payne, for appellant.

J.A Johnson, of Fort Payne, for appellee.

SAMFORD Judge.

The injury complained of was done to plaintiff's fruit trees shrubs, and potatoes by the defendant's hogs. It is declared by Mr. Chitty: "As the propensity of animals mansuetae naturae, as cows and sheep, to rove, is notorious the owner is bound at all events to confine them on his own land; and if they escape, and commit a trespass on the land of another, unless through the defect of fences which the latter ought to repair, the owner is liable to an action for trespass, though he had no notice in fact of such propensity." 1 Chit. Plead. 82, 181. The foregoing is quoted with approval in Gresham v. Taylor, 51 Ala. 505.

The complaint in the instant case was grounded upon the above principles, and the evidence for the plaintiff tended to prove the cause of action. That being the case, the question became one of fact for the jury and, therefore, the court properly refused to give at the request of the defendant the general affirmative charge.

It is insisted by the defendant that the verdict rendered by the jury was excessive, but there is no motion for a new trial and no exception thereto appearing in this record. That being the case, there is nothing presented for review, there being evidence which if believed authorized a verdict for the plaintiff. Richards v. Williams, 231 Ala. 450, 165 So. 820.

The damage done to plaintiff's trees, shrubs, and...