Staples v. Steed

• Decision Date: 12 May 1910
• Citation: 167 Ala. 241,52 So. 646
• Parties: STAPLES v. STEED.
• Court: Alabama Supreme Court

52 So. 646

167 Ala. 241

STAPLES v. STEED.

Supreme Court of Alabama

May 12, 1910

Appeal from Clay County Court; W. J. Pearce, Judge.

Action by C. L. Steed against W. D. Staples for damages resulting from the killing of a horse. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The case made by the pleading and proof is sufficiently stated in the opinion. The plea referred to is as follows: "That at the time of the commencement of this suit he was not a resident citizen of Clay county, Alabama, but that defendant was at such time a resident citizen in the city of Anniston county of Calhoun, state of Alabama, at which place defendant had a permanent residence and resides there at this time." This plea was sworn to, and sought to abate the action. The demurrers filed to this plea are as follows "(1) For that same is no defense to this cause of action, in that the same is in tort, and said plea is no answer. (2) For that this is not an action ex contractu but is an action in tort and said plea is no defense." The other facts are sufficiently stated in the opinion.

SAYRE J.

The plea of defendant's nonresidence was without merit. Code 1907, § 6110; Hoge v. Herzberg, 141 Ala. 439, 37 So 591. The demurrer was probably general; but if so the plea was incapable of amendment so as to make it good and the technical error involved in sustaining a general demurrer cannot avail for a reversal. Ryall v. Allen, 143 Ala. 222, 38 So. 851.

Appellee's complaint was that the defendant, a veterinary surgeon, had so negligently or unskillfully treated his horse for a spavin that the horse died as a result. The complaint was in tort. There seems little doubt on the evidence that the mere application of the cautery to the spavin did not account for the death of the animal a few hours thereafter, but that its death resulted from a rupture of the diaphram caused either by violently throwing the horse to the ground, preparatory to the application of the treatment, or by its struggle to free itself from the bonds which held its feet together during the operation. Appellant thinks that, such being the case plaintiff could not recover as for negligent or unskillful treatment. But to bind and throw the animal was a part of the treatment undertaken on the advice and under the direction of defendant, and is necessarily resorted to in cases where the animal is unruly or violent, as the jury might have inferred was the case here. We do not doubt that the complaint authorized a recovery on proof of negligence or unskillfulness in causing the animal to be thrown so as to produce its death in a way which ought to have been anticipated as a probable result. Such result does sometimes follow, it seems, where there has been no lack of care and skill. But in this...