146 P. 278 | Mont. | 1915
delivered the opinion of the court.
This action was commenced by plaintiff and respondent to recover damages against the defendants and appellants for injuries to plaintiff by reason of the death of ewe sheep and lambs, alleged to have been caused by the negligence of the defendants. The charging part of the complaint, or as much thereof as is necessary for a proper understanding of the case, is as follows: “That on or about the 24th day of September, 1911, the defendants negligently and carelessly, through their agents, servants, and employees, permitted said buck sheep to stray away from the band and herd in which they theretofore had been kept, without anyone in charge or control of said buck sheep, and said buck sheep then got into the band of ewes belonging to the plaintiffs, covering and breeding a great number thereof, and as a result of which a great many of said ewe sheep, to-wit, about 260.head or more thereof, then became preg
Counsel for respondent in their brief say: “Plaintiff does not base its recovery upon the statutes. This action is for damages for negligence and breach of defendants’ positive duty and obligation to keep their bucks from straying from their band, and their implied promise to pay any damages incurred.” It will be noticed, also, that no attempt has been made to bring the action within the provisions of either section 1881 or 1883 of the Revised Codes.
“In an action for the neglect of a statutory duty, the
But, before these rules can be applied, it must be shown that the defendant was guilty of some violation or disobedience of the provisions, or some provision, of the statute invoked, and. that the injury was proximately caused by .such violation or disobedience. (Monson v. La France Copper Co., supra, and cases there cited.) Some stress is laid on this feature' of the ease because counsel for respondent evidently attempt to invoke the provisions of section 1881 of the Bevised Codes in justification of the instructions referred to, notwithstanding the condition of the pleadings' and the evidence and their own admissions herein-before referred to.
Instruction No. 3: “The jury is instructed that a person having the possession and control of a band of buck sheep are presumed to keep all of the buck sheep together in the band or under control, and, ,if any of the buck sheep get out of the band and stray away and get with ewe sheep, it is then presumed that the persons in charge of the buck band carelessly and negligently permitted them to get away, and the duty devolves upon such persons to produce evidence tending to show that there was no such negligence.”
Instruction No. 4: “The jury are instructed that the defendants-in their answer having admitted the escape of 84 head of buck sheep from the buck band in their control, and the mixing of said bucks with plaintiff’s ewe sheep, it became the duty of the defendants to present evidence tending to show that the escape of said bucks was without their fault or negligence, and, not having offered any such kind of testimony, such fault or negligence will be presumed, and your verdict will be for the plaintiff for such damages as you find that it has sustained in consequence thereof.”
The instructions are in effect peremptory instructions to find for plaintiff. Upon what theory they were given we are not
In view of the pleadings, evidence and admissions referred to, this feature of the case might, with propriety, we think, be passed without further notice; but, as counsel on both sides have argued at length concerning that feature, it might be well for this court at this time to give expression to its views concerning section 1881, supra, and its applicability to the present case. We have already said the plaintiff is in no position to take advantage of its provisions for the purpose of invoking rules of law
Section 1881 is as follows: “It is unlawful for any owner or person having the management or control of any ram or he-goat to permit the same to run at large between the first day of August and the first day of December of each year.” Section 1882 provides a penalty for violation of the provisions of section 1881. To permit the ram or he-goat to run at large constitutes the offense under the statute, and not alone the running at large. The chief difficulty encountered in construing the statute seems to be in determining the proper definition of the word “permit,” as used therein. “The language [of a statute] is to be understood in its usual and ordinary significance.” (Osterholm v. Boston & Mont. C. C. & S. Min. Co., 40 Mont. 508, 528, 107 Pac. 499, 505.) Webster’s definition of the word “permit” is: “To allow by tacit consent, or by not hindering; take no steps to prevent; consent tacitly to.” Other judicial definitions to the same effect can be found in Words and Phrases, some of which are: “To allow by not prohibiting.” “Permit means not to prohibit or prevent.” These definitions, we believe, show the usual and ordinary significance of the word “permit.” Accepting them as correct, we are forced to the conclusion that if a ram or he-goat run at large without the tacit consent of those in control, or if those in control make a reasonable effort to hinder or prevent such animals from running at large, then no offense has been committed under the statute.
Some of the same elements must necessarily enter into this case based upon simple negligence, for the complaint charges that the defendants “permitted said buck sheep to stray away,” etc. To ‘! run at large, ’ ’ we believe, involves the idea of voluntary, careless, negligent, or faulty action or omission on the part of those having the animals in charge. Whether or not in this instance the bucks of the defendants were running at large depends upon the facts. (Presnall v. Raley (Tex. Civ. App.), 27 S. W. 200; Stephenson v. Ferguson, 4 Ind. App. 230, 30 N. E.
This brings us to the question: Was the trial court warranted in determining, as a matter ’of law, under the evidence, that the
Witness Skogan testified: That, at the time the bucks mixed with the ewes, he was herding the ewes at Rosebud Buttes, about seven miles south of the town of Rosebud. He first observed the bucks getting into the sheep on September 17, 1911. He found two bucks in with his sheep, and, about a day or two afterward, another one came. All three were killed. On the 23d of September, 1911, about 5 o’clock in the evening, there came a bunch of 84 bucks, which he was unable to keep from mixing with and covering the ewes. That from the time he commenced herding the ewes, in July, 1911, up to the time they commenced dropping lambs, there had not been any buck sheep with the ewes, except the ones mentioned.
Witness Williamson testified: That he was employed by plaintiff from the 4th day of January, 1912, to April 15, 1912. That he knew the witness Skogan, and that Skogan worked for the plaintiff a portion of the time that he (Williamson) did. That he was acquainted with the band of sheep taken by Skogan to Fromberg (being the ewes mentioned as having been mixed with
Witness Davis testified: That he was employed by the plaintiff and lived on the premises of the company; had been employed about three years. The first of the year 1912, he became foreman. That he was acquainted with witness Skogan and with the band of sheep Skogan was herding in September, 1911, at Rosebud Buttes. That plaintiff had another band about seven or eight miles southeast. It was not there until about the last of September. That Skogan’s herd was divided, the old ewes from the young ones, in October. That these old ewes started to drop lambs about February 15, in all about 250. That all of these lambs died except six that he got rid of. That the minimum number of old ewes that died was 200.
Witness Williamson, recalled, testified: That he saw the dead lambs at the ranch of plaintiff in the spring of 1912. There was but one band dropping lambs. They commenced to lamb about February 15. That he saw the lambs dropped, and saw some of the ewes that dropped lambs, not all of them; counted 200 dead lambs.
Witness Bjornstad testified: That he lived on Six-Mile creek, in Custer county, and was there in the middle of September, 1911. That he was in the employ of the defendant Hendrick-son, who sent him after a band of buck sheep. He was told to go the day Mr. Ball came over and told Hendrickson the bucks' were over there. He went and got them. He found them in the corral at the Rosebud Buttes. Did not count the bucks. He brought them home to Hendrickson, who put them in the bunch of bucks that he had there. He had seen the bucks he brought back in this bunch before. They had been away three or four days when he went after them.
Witness A. M. Ball testified at some length. His testimony, however, is devoted mostly to the questions of proper breeding of sheep, their value, and the value of lambs. The only testimony given by this witness which can possibly have any bearing upon the question of negligence of the defendants is as follows:
Without further comment, we say that a careful reading of this evidence convinces us that “different conclusions might be drawn by different men of fair, sound minds” on the question of defendants’ negligence, and the matter should have gone to the jury and was not for the determination of the court. (Anderson v. Northern Pac. Ry. Co., 34 Mont. 181, 85 Pac. 887, and cases there cited; Thompson’s Commentaries on Negligence, sec. 7393.)
Instruction No. 14 given by the court is erroneous for the same reasons urged against instructions numbered 3 and 4.
Evidence of the value of the lambs which died was admitted on the trial, over the objection of appellants, and this is
The record contains many other specifications of error, which we have considered, but we deem them of little or no merit.
For the reasons above given, the judgment and order appealed from are reversed and a new trial ordered.
Reversed and remanded.