Wheeler v. Woods
| Decision Date | 28 May 1928 |
| Citation | 219 N.W. 407,205 Iowa 1240 |
| Parties | Z. Wheeler, Appellant, v. Fred Woods, Appellee. |
| Court | Iowa Supreme Court |
Appeal from Warren District Court. — J.H. APPLEGATE, Judge. Action by appellant, as plaintiff, for the recovery of damages against the appellee, as defendant, because appellee's bull attacked and injured appellant's bull. The cause was submitted to the jury, and it returned a verdict for the defendant, and the plaintiff appeals. — Affirmed.
Norman Huyck, for appellant.
J.O. Watson and Julian Garrett, for appellee.
Plaintiff-appellant and defendant-appellee reside on adjoining farms in Warren County. Between these properties is a partition fence, one half of which is maintained by appellant, and the remaining portion is thus kept up by appellee. On either side of this division line, and immediately adjacent thereto, are the respective pastures of the parties. In each grazing area was a bull, the one being owned by appellant, and the other by appellee.
During the month of September, 1925, appellee's animal broke through, or jumped over, the "fence" into appellant's "pasture," where the latter's bull was feeding with a herd of cows. So, like the true knight of old, chivalry prompted this male protector of the group to march forward, in his armor bold, to shield the females under his care from a possible discourtesy or attack by the intruding stranger. But appellee's animal had in his heart the desire to win the fair ladies, and in this ambition he did not intend that his purposes should be thwarted by appellant's bull. Consequently, a fight ensued, not on the grounds before some ancient castle of Europe, but in the meadows of Warren County. As a result of the encounter, appellant's bull was defeated, and so wounded as to require that he be killed by his owner. He was sold to a packing house at Des Moines for $20, but before his injury, it is insisted, the animal was worth $200 or $250. A conference was had between the respective owners, and compromise discussed, which finally ended in a settlement.
The exact terms of this adjustment are in dispute. That agreement, in general effect, embodied the proposition that appellee was to cut, or permit appellant to use the former's binder to harvest, the latter's small grain during the season of 1925. It is the contention of appellee that this understanding amounted to a novation, or a substitution of the contract for the original disputed claim arising out of the tort, and he declares that the implement was to be thus given to appellant at such times as appellee did not need it for his own fields; while appellant urges that the arrangement amounted to no more than an accord, and that there could be no satisfaction until appellee fully executed all the things required of him in the premises, which included the obligation to permit appellant to have the machine whenever he needed it. Furthermore, appellant says that appellee commenced to do the work, but, before finishing, refused to make complete performance. On the other hand, appellee asserts that he was at all times ready, willing to, and did, carry out his part of the bargain. Under apt instructions, the cause was submitted to the jury, which found in favor of appellee.
Errors assigned by appellant will now be considered.
1. ANIMALS: appellee's trespassing animal under the various trespassing circumstances and conditions named in the animals: charge, unless "it escaped from adjoining land failure to in consequence of the neglect of" the maintain complaining adjacent "landowner [appellant] to fence: maintain his part of the lawful partition effect. fence." Because the "trespasser" was a male, appellant says recovery should be allowed him regardless of the condition of the partition fence, and for authority at this point he cites the following cases: Burleigh & Jackson v. Hines, 124 Iowa 199, and Goslar v. Reed, 189 Iowa 1198.
At the time those opinions were written, there was in existence a statute especially requiring the restraint of certain male animals, and hence it was the rule in this state that a different principle applied to the control of such beast 2. ANIMALS: from that relating to those of the ordinary type duty to not thus regulated. See Section 2312, Code of restrain. 1897. However, since that time we have been provided with new legislation, and in the present Code there is no distinction made concerning the restraint of domestic animals, for now all are to be so confined or controlled. Section 2980 of the 1924 Code contains this sentence:
"All animals shall be restrained by the owners thereof from running at large."
Both males and females are included. We said in Hansen v. Kemmish, 201 Iowa 1008:
"The state is still pre-eminently agricultural, and we think that the statutes requiring animals to be restrained have reference primarily to the industry."
This language was employed in the determination of litigation arising under the 1897 Code; yet the philosophy of the discussion is doubly applicable here, for the reason that, under the present Code, the former difference concerning certain male and other animals has been eliminated.
Fencing is a neighborly responsibility. Mutual burdens in this respect must be borne by adjacent landowners, in order that there may be equal disposition of the liability for keeping stock in the proper territory. Such was the aim of the legislature when it enacted Section 2980, supra, requiring "all animals * * * restrained." Likewise, in furtherance of that idea, the following four sections of the same Code were adopted:
Appellant waived his right to distrain, under Section 2981, supra, and elected to bring an action for damages in lieu thereof, under Section 2986, supra; but the remedy chosen was as limited, so far as the defense of negligent maintenance under the statute is concerned, as that under the one discarded. Keeping this in mind, it is plain to see that the correctness of the instructions of the district court is apparent, after reviewing the history of the legislation applicable to the subject-matter of this suit; for, under the evidence, uncertainty arose as to where the trespassing bull went over or through the fence. Therefore, the fact-finding body had a right to conclude, if they so found, that the cause of the trespass was appellant's carelessness in looking after his portion of the fence. Necessarily, then, the appellant could not recover, under the above and foregoing legislative enactments, if the record disclosed that he had not discharged his responsibility in relation to the "fence."
3. TRIAL: of the vicious or breachy...
To continue reading
Request your trial