137 Ark. 214 | Ark. | 1919
(after stating the facts). The liability of the defendant depends upon the construction to be given to section 7897 of Kirby’s Digest. It reads as follows:
‘‘If any seed horse or any unaltered mule or jack, over the age of two years, be found running at large, the owner shall be fined for the first offense three dollars, and for every subsequent offense not exceeding ten dollars, to be recovered by civil action in the name of any person who shall sue therefor, one-half to his own use and the other to the use of the county; and the owner shall also be liable for all damages that may be sustained by the running at large of any seed horse, jack or mule.”
In Briscoe v. Alfrey, 61 Ark. l96, the court said that this statute does not place owners of animals beyond the protection of that universal rule which exempts men from liability for inevitable accidents and that it was the intern tional or negligent permission of the owner for his animal to run at large which subjects him to the civil and penal, consequences prescribed by the 'statute.
In that case the defendant kept the animal in a strong stable surrounded by a strong high fence and it broke out during the night without the defendant’s knowledge. The court held there was no liability for the reason just given. Tested by this rule the animal was “running at large” in the present case. It is true the stallion broke out without the owner’s knowledge, but the owner permitted him to remain in the pasture of the plaintiff for several days after he knew he was there and without the plaintiff’s consent. It was during this time that the stallion killed the mares of the plaintiff. The stallion was not confined and broke into the field of the plaintiff and stayed there without his permission. The stallion was without restraint or confinement by the owner and this constituted “running at large” within the meaning of the statute. 2 Cyc. 443; Goener v. Woll (Minn.), 2 N. W. 163; Duggan v. Hansen (Neb.), 61 N. W. 622; Russell v. Cone, 46 Va. 600; Wright v. Clarke (Vt.), 28 Am. Repts. 496, and see case note to 9 Ann. Cas. at p. 284.
The undisputed evidence shows that the animal was in charge of Boshears. It is true he belonged to Fraser and was kept on Fraser’s premises but Boshears rented the land from Fraser for the stipulated price of $5' per acre and hired the horse from Fraser for the use of him. Under this state of facts Boshears had the right to the exclusive use, possession and control of the horse at the time the horse killed the mares. As we have already seen the statute does not impose absolute liability upon the owner but only subjects him to civil liability when his animal runs at large by his negligent permission. Thus it will be seen that the statute is directed against the person who has the right.of immediate possession and control of the animal. So we are of the opinion that the word “owner” as used in the statute does not mean the one having the absolute title, but means the one having the right to the'possession and control of the animal. This being so Fraser was not the owner of the animal within the meaning of the statute and was not subject to liability under the facts as disclosed by the record. Hence under the undisputed facts as presented by the record, the court erred in not directing a verdict for the defendant.
It follows that the judgment must be reversed and the cause will be remanded for a new trial.