Minor v. Dockery

1. Animals. Statute imposes absolute liability on owner of trespassing stock. Under the stock law contained in chapter 50, Code of 1906 (chapter 102, Hemingway’s Code), the owners of the domestic animals therein named are required to fence such animals against the crops,, and crops may he cultivated on uninclosed lands; and section 2222, Code of 1906 (section 4541, Hemingway’s Code), being part of said stock law, makes the owner of trespassing stock absolutely liable for damages done by them to the crops of others, and questions of due care and negligence in confining stock are eliminated. 2. Animals. Agent in control of trespassing stock not liable for damages. A mere agent in control- of the cattle, horses, and mules belonging to his principal is not liable for damages done-by such animals in trespassing upon the crops of another, unde'r the principle that an agent is liable to no one except his principal for damages resulting from an omission or neglect of duty in respect to the business of the agency.

Appeal from circuit court of Adams county. IÍ01N. E. L. Corban, Judge. Action by Octavia Dockery against Duncan G. Minor. Judgment for plaintiff., and defendant appeals. These cattle alleged to have trespassed on the lands of appellee were in the direct charge of employees living on the Fatherland Place and the appellant was a mere in-, termediate agent between the owners and ‘these employees. The instructions given by appellant were to keep up the cattle and to keep up the fences. Appellee cites the case of Bilew v. Paisley, 4 L. E. A. 840. That case under the facts of this case is authority for the appellant. See Opinion pages 843-844 and quotations therein from Brown v. Lent, 20 Vt. 529. Appellant also makes an effort to apply the rule announced in Montgomery v. Handy, 62 Miss. 16, to the facts in this case. In the Montgomery v. Handy case, the defendant who was sued for the trespass, owned some of the cattle in the common enclosure and voluntarily permitted the cattle of another to mingle and run with his own and as it would be difficult to distinguish under the circumstances whether his cattle or the other cattle he allowed to mingle with his did the damages, then it was reasonable for the court to hold that he was an owner for that one particular occasion or as the court puts it an owner pro hoe vice. But the court did not depart from the language of the statute in our state that the owner is liable for the damage but simply held the defendant under the peculiar facts of the Montgomery v. Handy case, to be an owner for all intents and purposes. It is clear that appellant as this intermediate agent took all reasonable steps to prevent the cattle getting out and trespassing. We respectfully submit that this case should be reversed and dismissed and judgment rendered for appellant. The assignments of error'as to'the instruction given thus appellee, and the instructions refused appellant have really to do with the proposition of law as to whether or not the person having possession or control of the animal will be liable for damages or is the liability confined simply to the owner? Appellant contends that the liability is regulated by section 2222 of the Code of .1906, which says: “Any owner of cattle . . . shall be liable in damages for all injuries. ...” This immediate proposition was disposed of in the cáse of Montgomery v. Handy, 62 Miss. 16, in which an action was brought for the destruction of crops by animals. The defendant resisted liability; that there was not a common enclosure, a question not pertinent to the issue here, and that he was not liable for the destruction of any crops done by his brother’s stock since the section referred to makes only the owner of the stock responsible, which he stated these cattle were not. The facts were that the defendant in the reported case permitted his brother to drive a number of cattle onto the defendant’s place, and both the defendant’s cattle and his brother’s cattle readily passed over into the land of the plaintiff and damaged their crops. In passing upon the defense, Chalmers, J., said: “Neither position is sound — he was equally responsible for damage inflicted by the stock of his brother, which by permission, had been mingled with his own. It is true that the statutes speak of the owner only as being responsible and it is true also that penal statutes are to be strictly construed. But that the defendant was liable for the damage inflicted by all the stock voluntarily mingled with Ms own seems too plain for argument. If he was not, he would have been equally acquitted for damage done by a hired animal though hiring -was for the whole year, since in either case it might have been argued that he was not the owner of the animals; in either case he was the owner pro haec vice and must be so treated. ; This decision of our own.court, to our mind, disposes of the question at issue, but, again, in the case of Knott v. Brewster, 27 So. 758, a plaintiff sued defendant for damages to his crops by defendant’s cattle or cattle in his charge; the defendant, among other things, plead that he did not own any cattle. A peremptory instruction was given in the lower coiirt and Terrell, J., reversed the case, and stated that it was a question for the jury. “Liability for the trespass of animals is imposed not because of ownership but because of possession., and of the duty to care for them. Accordingly, one who has the use, care and control of cattle, although not their absolute owner is liable for their trespasses.” 3 Corpus Juris, p. 144, sec. 452. In the case of Bileu v. Paisley, 18 Or. 21; 4 L. R. A. 840, it was held: “That the manager of sheep, who was not the owner thereof, is responsible to a third party for actions of the herders employed by him, although the acts were done without his knowledge or authority and contrary to his direction.” Under our statute, any person having possession of, or control of, cattle, is the owner pro haec vice under section 2222 imposing liability upon any owner for damages for all injuries committed by such animals. Negligence of the owner, or person having possession, is not a prerequisite to the liability. There is liability in a stock-law district when it is shown that certain cattle did certain damages, and it is not incumbent upon a plaintiff to show that there was negligence attending the trespass of the animals; it is the absolute duty of a person having possession of an animal in a stock-law district to keep the same within an enclosure and not to permit it to escape. ■ The court properly refused the following instruction requested by the defendant: “The court instructs the jury that if they believe from the evidence that stock other than the Fatherland stock got into the fields or crops of plaintiff, and they are unable to determine just what damage was done by the stock in possession or control of the defendants, that they should find for defendant.” There was no evidence that any stock other than the Fatherland stock got into the fields of plaintiff and did any of the damage for which this suit is brought. However, if stock in the possession or under the control of the defendant, other than Fatherland stock, did do some of the damage, the defendant was, of course, liable, and the instruction would have been properly refused. No doubt, counsel intended said instruction to refer to stock other than stock under the possession and control of defendant, but the instruction ivas not so worded, and wás properly refused. . , Wé respectfully submit that this cause should be affirmed.