Rowe v. Baber

• Decision Date: 12 February 1891
• Citation: 93 Ala. 422,8 So. 865
• Parties: ROWE v. BABER.
• Court: Alabama Supreme Court

8 So. 865

93 Ala. 422

ROWE v. BABER.

Supreme Court of Alabama

February 12, 1891

Appeal from circuit court, Cleburne county; LEROY F. BOX, Judge.

Merrill & Bridges, for appellant.

Ellis & Turner, for appellee.

COLEMAN J.

Appellee who was plaintiff in the trial court, sued defendant upon a rent obligation. Defendant's plea No. 3 presents the question raised by the two charges given at the request of plaintiff, and to which exceptions were reserved, and which are matters to be considered under the assignments of error. The plea states that, "in consideration of the rent to be paid, plaintiff agreed to fence the land, was to secure the crop from stock, and agreed also to repair the buildings and that plaintiff failed and neglected to fence the lands and by reason of the failure to fence the lands stock or cattle broke through the fence, and injured the crops, to the damage of defendant," etc. The obligation on the part of the landlord to repair the fence was in parol, and testimony was introduced which tended to prove the agreement as stated in the plea. Powell v. Thompson, 80 Ala. 55; Vandegrift v. Abbott, 75 Ala. 490. A great deal of conflicting evidence was introduced on the trial as to the condition of the fence, the damage done to the crop, and as to whether the cattle broke into the field, or were turned into the field with the consent of the defendants, or were permitted to run in on the crops with his knowledge, and without any diligence or exertion to prevent it. There were no objections or exceptions to the admission of evidence offered by either party. The damage done to the crops was variously estimated by the witnesses. There was evidence offered by the defendant which tended to show the fence was in bad condition, that in many places the rails were rotten, and in some places not more than four rails high, and in other places the fence was made of brush. Plaintiff's testimony tended to show the contrary. The defendant, with other testimony, offered evidence "that the stock so breaking into his crops belonged to various people in the settlement, and that defendant's (J. L. Rowe's) own cattle would break into the crops just as other people's stock did; that said stock breaking into said crops would jump over or go through the fence in many places to go in and out of said fields; that said Rowe, with his farm hands, would drive out the stock when they would get in; that he and his hands drove them out both day and night; and that he drove out his own stock, just as he did that of other people's." The court charged the jury: "(2) If the jury believe from the evidence that defendant's crop was damaged by his own stock, then for that damage he cannot recover." If the evidence which tended to show that plaintiff turned his own stock into the fields, or voluntarily permitted them to run upon the crops, had not been controverted by other evidence, this charge would have asserted a correct principle; but, there being evidence which controverted to some extent these statements, and which tended to show "that defendant's stock broke through the fence on account of its bad condition and the failure of plaintiff's intestate to fence the land according to his agreement, and the defendant endeavored to protect the crop from his stock, the charge imposed a duty upon the defendant which neither the law nor the rent contract required of him. The charge deprived the defendant of all benefit of this evidence, although the jury may have believed it. In this state every person has the right to permit his own cattle to run at large. Pruitt v. Ellington, 59 Ala. 457; Railroad Co. v. Peacock, 25 Ala. 229. The contract, as stated in the plea, devolved upon plaintiff's intestate "to fence the land so as to secure the crops from stock," and this provision applied to the defendant's stock as well as to the stock of other people. The defendant was under no obligation to pen his own stock, or to keep them guarded. The court erred in giving charge No. 2, quoted above. It, in effect, relieves complainant from his obligation "to fence the land," although the jury believe such agreement was made; and the charge holds the defendant responsible for damage done by his own stock, without any regard to that part of the evidence which tended to exculpate him from responsibility for damage caused by his own stock. The law did not hold defendant, for the damage done by his own stock, absolutely and under all circumstances responsible. Strauss v. Meertief, 64 Ala. 307. Charge No. 6. after first stating what may be regarded as a correct proposition of law, when referred to the evidence, continues as follows: "And if all the evidence leaves the fact in a state of doubt and uncertainty as to the damage done by the stock which broke into defendant's crop, the defendant's plea of recoupment cannot be regarded as established by the testimony." The objection urged against the correctness of this charge is that it exacts too high a degree of proof of the defendant in holding that, if all his evidence leaves the fact in a "state of doubt and uncertainty" as to the damage, the plea of recoupment is not sustained. No doubt this charge was...