Elliott v. Kitchens

111 Ala. 546 | Ala. | 1895

HEAD, J.

Each count of the complaint contains a substantial cause of action.' In other words, it would support'a judgment by default. This is true upon the facts stated, without regard to the legal effect of the ordinance mentioned in the second count, upon the plaintiff's right of action. The sufficiency of the counts upon demurrer is not before us, and we cannot properly pass upon the questions touching that subject, discussed ]>y appellant’s counsel. • We will remark, however, that it is well settled that deipurrer is not the proper method of determining what is a proper measure of damage. If the complaint shows a wrong committed by the defendant, actionable in favor o'- the plaintiff, it is good, although nominal damages only may be recoverable. The insertion of a claim of special damage, not legally recoverable,1 is not cause of demurrer. . We notice that the first count claims no special damages at all. Under that -count there could be no recovery of more than nominal damages. The second count claims for injuries to the wagon and mare, which would let in proof of those injuries.

The question arises under the defendant’s second plea, whether the plaintiff’s colt was “running at large” within the meaning of that allegation of the plea; for if that allegation was proven the defendant was entitled to the general charge which the court gave — the plaintiff having joined, issue on the plea. At the time of the injury the colt was about three months old, and was following its dam then being drivbn by plaintiff to a wagon through the streets of Jasper. In 12 Am. & Eng. Encyc. of Law, 898, we find the following: ‘ ‘ ‘Running at large*, ’ in statutes imposing a penalty on one who suffers, animals to ran at large in public places, is used in the sense of strolling without restraint or confinement; as wandering, roving or rambling at will, unrestrained. Perhaps, no abstract rule under the statute can be laid down, applicable to every case, as to the nature, character and amount of restraint necessary to be exercised over a domestic animal when suffered to be on the highway incident to its use. But the restraint need not be entirely physical; it may depend much upon the training, habits and instincts of the animal in the particular case; and the sufficiency of the restraint is to be determined more from its effect upon, and controlling and restraining influence over, the animal than from its nature or kind.” In a note, the following quotation from Russell v. Cone, 46 Vt. 604, is given: “Suppose a span of horses be so accustomed to be kept and driven together that while the owner is riding one the other will voluntarilv follow as closely almost as if led by a halter ; the owner while' taking them along the highway in this manner could not be said to suffer the horse so voluntarily following its mate, to run at large in violation of the statute. The same may be said of a young sucking colt upon the highway, with no’restraint other than in-, stinct to follow its dam, which is being driven in a carriage on the highway.” It was accordingly held, that a horse accustomed to be ridden to a certain point by the owner and then to return home alone to a point, where the owner’s boy was waiting for him and took care of him, was not “running at large,” if his owner or his son kept so near that, owing to its training, it would not wander about the highway, but go directly home. A number of other authorities are quoted from in the notes stating similar principles. Thus, a dog following his owner, or engaged in the -chase, is not “running at large.” The case of Smith v. K. C., St. J. & C. B. R. Co., 58 Iowa, 622, is stated as follows : “A suckling colt, following its mother, which was in the plaintiff’s contx-ol, strayed and was. injured by defendant’s train. Held, that the colt under such circumstances, must be deemed to have been running at large.” ‘ ‘The fact that the colt was a sucking colt and its mother was in the control of the plaintiff did not, we think, hold that the colt was in such control. It might perhaps under ordinai’y circumstances be expected to follow its mother, but there was nothing but its own inclination to restrict its freedom and prevent it fx’om straying, and we thiuk that it must be deemed to have been running at large.” If that case be regarded as sound, it is yet distinguishable from the pi’esent. There the colt of its own volition, strayed away from its dam, and, when injured, was at large, under no x*estraint of instinct or otherwise. Here the facts were that the colt was following its dam, and the defendaxit’s horse, loose upon the street, ran after it. The colt ran along directly in front of, and by the side of its dam, and plaintiff kept the horse from it by throwing chips and trash at him, which he picked up in the bed of the wagon, until he drove up to the foundry and got out of the wagon, when the horse got in between the colt and its mother and chased it away, causing the mare to break away from the plaintiff’s control and run, with the wagon, after the colt. There was not only the restraint of instinct, actually in force at the time of the injury, but there was the physical presence of the owner actually exerting control and protection oyer the colt.

We aré of opinion that under the facts of this case, and the principles of law aboye stated, the colt was not running at large within the meaning of the plea, and the ordinance upon which it relies.

The facts were sufficient in all other respects, to carry the case to the jury. The court erred in- giving the affirmative charge for the defendant.

Reversed and remanded.