Warren v. Cowden

• Decision Date: 02 December 1912
• Citation: 167 Mo. App. 485,151 S.W. 501
• Parties: WARREN v. COWDEN.
• Court: Missouri Court of Appeals

151 S.W. 501

167 Mo. A. 485

WARREN v. COWDEN.

Springfield Court of Appeals. Missouri.

December 2, 1912.

1. ANIMALS (§ 51) — RUNNING AT LARGE — RESTRAINING — NOTICE TO OWNER.

The owner of a cow running at large having been personally informed that it was restrained, and the parties, though discussing it, not having agreed on the damages, Rev. St. 1909, § 773, dispensing with the written notice, provided by section 772, of the restraining, as a condition to recovery of damages, where it appears the owner had actual notice and the parties could not agree on the damages, applies.

2. ANIMALS (§ 51) — RUNNING AT LARGE — RESTRAINING — NOTICE TO OWNER.

Where Rev. St. 1909, § 773, dispensing, under certain circumstances, with necessity of giving written notice, under section 772, of the restraining of a cow running at large, applies, it is immaterial, as regards the rights of the one restraining to recover damages, that he gave an insufficient written notice.

3. NEW TRIAL (§ 40) — GRANTING ON COURT'S MOTION.

Though defendant did not except to instructions, the court may of its own motion notice error therein and grant him a new trial on account thereof.

4. ANIMALS (§ 51) — RUNNING AT LARGE — DISTRAINT — LIEN — DEPOSIT OF AMOUNT ADMITTED DUE.

Authorizing recovery by plaintiff in replevin for his cow, restrained, when running at large, by defendant, without plaintiff having deposited the amount which, by his tender, he admitted to be due defendant on account thereof, or without an instruction to render verdict for that amount, if the jury found for plaintiff as to the other issues, was error.

5. APPEAL AND ERROR (§ 854) — REVIEW — ORDER FOR NEW TRIAL — REASONS ASSIGNED.

An order granting a new trial will not be reversed, good reasons appearing on the record for granting a new trial, though the reasons assigned by the trial court were unsound.

Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.

Replevin by L. P. Warren against W. T. Cowden. From an order granting defendant a new trial, plaintiff appeals. Affirmed.

Rechow & Pufahl, of Bolivar, for appellant. B. J. Emerson and L. Cunningham, both of Bolivar, for respondent.

NIXON, P. J.

This is an action in replevin originating in a justice's court. On appeal, plaintiff obtained judgment, and the court, on motion, granted the defendant a new trial. From this order plaintiff appealed.

On August 6, 1911, plaintiff's cow entered the premises of the defendant and damaged defendant's corn. The defendant restrained her and claimed damages and compensation from the plaintiff under article 5 of chapter 6 of the Revised Statutes of 1909, concerning "animals restrained from running at large." The parties agreed that this law was in force in Polk county, the scene of the action. Section 772 of this article provides that domestic animals running at large may be restrained, and lays down a rule as to giving the owner of the animal written notice within three days of the taking up and requiring the notice to state the amount of compensation for feeding and keeping such animal or animals and damages claimed. Section 773 is as follows: "When notice not necessary. — If it shall appear and be proven on trial that the owner or owners of such domestic animals, as set forth in section 772, shall have actual notice that his or their said animals or stock were restrained, and by whom, and that the parties interested could not agree on the amount of damages claimed, then the three days' notice as required by section 772 shall not be necessary to a recovery."

The evidence in this record shows that defendant restrained plaintiff's animal on the evening of August 6, 1911 (Sunday), and personally notified plaintiff, who resided near by. We quote from defendant's testimony: "The weather was hot and dry, and I told him (plaintiff) I would like for him to come and get the cow. He wanted to know what the damage was, and I told him that I would charge him a dollar or what the law allowed to putting her up and for the damages. I thought the law allowed 50 cents for putting one up, but I found out later that it was only 25. He said, `All right.' He made no objection whatever. He said he did not have the money but he would do whatever was right about it. I said, `I have been turning your stock over to you, and you have been promising to pay me, but you have never paid me a cent.' In fact, I had been turning his stock over to him time and again, and I told him that. He said he did not have the money, but would borrow it. I told him that while he was doing that — it was only a short time before this when I had turned over to him his stock and he promised to pay me and he never paid me a cent or said a word about it — couldn't he borrow that other, too, and bring it, and then he flew mad and said he wouldn't do it. He said he was fixing to go to Buffalo and would be gone about four days, that he wanted me to milk the cow and take care of her, and that when he came back he would come and settle. I said, `By that time I don't know what might happen.' After he got mad he would not give me any satisfaction, and I came on home and allowed he would come and get the cow. If he had come and done the right thing, I would have turned the cow over to him; if he had come with the money."

The plaintiff's version is as follows: "On Sunday, August 6th, Mr. Cowden, the defendant, came and told me that he had taken up my cow. * * * I said, `I do not want my cow on my neighbors,' and asked him if she had damaged him, and he said she had. I said, `What is the damage?' He said, `Well, I reckon about a dollar will pay the damages.' I said: `Well, that is not too much, but I haven't got the money. I will go out and get it and come back and get my cow.' He said, `When you go to get that, fetch me another $1.50 for the damages for the time your cow was on my oats.' I said, `I will pay you the other money like I agreed to pay it when I get so that I can, and when you get some men to assess the damages, and whatever the men say I will pay whether it is $1.50 or $5.' He said, `I will hold your cow for that.' I said, `You cannot do it.' He said, `I will show you whether I can or not.' Then I said, `Take good care of the cow, as she is giving lots of milk.' He said, `I will do just as I please about it.' And then I went off and never talked to Mr. Cowden any more that time."

It is apparent to any one that no agreement was reached between these parties, and hence section 773 is the governing statute in this case. This being true, no written notice was necessary as required by section 772.

Defendant fed, watered, and milked the cow on Monday. On the morning of this day defendant was in Goodson, a town near by, and a man named Tom Gladdon saw him and told defendant he had a dollar for him to settle...