93 So. 2d 459 | Miss. | 1957
On the 3rd day of March, 1955, the appellant, C. H. Galloway, Sr., filed in the Circuit Court of Madison County an affidavit in replevin to obtain the immediate possession of 9 head of cattle, separately valued but of the total value of $422.50, which cattle he alleged were
The cattle of the appellant were trespassing upon the lands of the appellees and it is stipulated in the record herein that the adjoining lands of the appellant and those of the appellees are within the area where the state-wide stock law is in full force and effect, as provided for under Section 4864, Code of 1942.
The deputy sheriff was accompanied on the lands of the appellees by the appellant, his son, and some Negro helpers for the purpose of assisting the deputy in the execution of the writ of replevin, and whereunto they had been duly deputized on account of the fact that Mr. Galloway’s cattle were wild to the extent of being difficult to corral and take into possession while grazing in the pasture of the appellees along with about 175 to 200 head of their cattle.
During the day when the writ was being executed there were a total of 23 head of cattle belonging to Mr. Galloway trespassing on the pasture land and oat crop of the appellees. These 23 head of cattle were corralled into an enclosure with some of the cattle of the appellees, but only the 9 head described in the affidavit and writ of replevin on March 3, 1955, were delivered into the possession of the plaintiff in replevin upon his execution of a bond therefor on the date this writ was served, the appellees being unwilling for the possession of the other 14 head to be delivered to the plaintiff without another writ of replevin for them. Consequently on the next day, March 4, 1955, another replevin suit was instituted in the Circuit Court of Madison County for the recovery of the immediate possession of the additional 14 head of cattle found in the pasture and oat crop of the appellees. In the additional writ of replevin
The suit for the 9 head of cattle seized on March 3, 1955, is styled as case No. 9972, and the suit for the remaining 14 head of cattle which were seized on March 4 or 5, 1955, is styled as case No. 9973 on the docket of the Circuit Court of Madison County. By agreement of the parties the two suits were consolidated and tried as one. As a result of the trial the jury fixed the separate value of each head of the cattle in the first group of 9 the same as the value fixed in the affidavit, writ of replevin, and in the sheriff’s return, and of the total value of $422.50, and likewise fixed the value of each of the 14 head in the second group, and as being of the total valne of $635.50.
The judgment then ordered that the plainitff C. IT. Galloway, Sr, as principal, and J. E. Borer and Eugene Wiggins, sureties, on the bond in Case No. 9972, restore the cattle described in that case to the defendants Floyd T. Brown and J. Leland Brown, or pay them the value thereof, to-wit $422.50, “as assessed by the verdict of the jury, the same amount being the value, as assessed by the jury of defendants’ interest in said cattle under their lien for damages”, and the judgment further ordered that the plaintiff C. H. Galloway, Sr., and W. T. Kernop and Mrs. IT. G. Hawkins, sureties on his bond, restore the 14 head of cattle listed and described in Case No. 9973 to the defendants Floyd T. Brown and J. Leland Brown or pay them the value thereof in the sum of $635.50, “as assessed by the verdict of the jury, the same amouiit being the value, as assessed by the jury, of the defendants’ interest in said cattle under their lien for damages”. The judgment then ordered that “the plaintiff C. H. Galloway, Sr., pay to the said defendants Floyd T. Brown and J. Leland Brown the additional sum of $436.18, the total amount of this judgment being $1,494.18, being the damages assessed by the
Section 4864, Code of 1942, provides in effect that where the state-wide stock law governs, any person owning or having under control any livestock shall not permit them to run at large upon the open or unfenced lands of another person. (Italics ours).
Thus it will be seen that all of the testimony in regard to whether or not the fence of the defendants was in a good state of repair was immaterial on the issue of whether or not they held a lien on the cattle of the plaintiff for such damages as they may have sustained by reason of the trespassing of the plaintiff’s cattle on their pasture and crops. Where the state-wide stock law is in full force and effect, the owner of livestock is required to keep them under a safe enclosure of his own, without regard to whether or not other landowners in the stock law district have a sufficient fence, or any fence at all, around their crops of cotton, corn, oats or other such pasture crops; he must rely on the strength of his own fence and not depend upon the insufficiency of his neighbor’s fence.
Section 4870, Code of 1942, provides, among other things, that any livestock as referred to in Section 4864, supra, “found running at large upon the lands of any other person than the owner or custodian of such stock may be taken up by any sheriff, constable, marshal, or other peace officer of the state within his territorial jurisdiction, and confined within a safe enclosure. * * * And the charges for so taking up and confining, together with any damage done by said stock, if any, shall be a special,
Section 4871, Code of 1942, provides: “Every owner of such livestock shall be liable for damages for all injuries and trespasses committed by such animals by breaking and entering into or upon the lands, grounds, or premises of another person; and the person injured shall have a lien upon the animal, or animals, trespassing for all such damage. The damages for such trespass shall not be less than 50 cents for each horse, cow or hog, and 25 cents for each of the other kinds of stock; and for every succeeding offense, after the owner has been notified of the first trespass or injury, double damages shall be recovered with costs. For breaking- or entering into a pasture or waste ground, however, double damages shall not be recoverable, and the damages in such cases may be assessed as low as 40 cents for each horse, cow or hog and 20 cents for each of the other kinds of live stock.”
Section 4872, Code of 1942, provides that “Any such livestock may be taken up and confined by any person upon whose land such animal, or animals, may have entered or may be found, such person not having- consented for the animal, or animals, to run at large on such land, and when so taken up shall be dealt with as estrays. For taking up any animal the person so taking the animal up shall be allowed 50 cents per head for each animal so taken up, but in no case shall he be entitled to receive more than two and one-half dollars ($2.50) fox-stock taken up at axxy one time. He may also receive
Section 4873, Code of 1942, provides in part as follows : 1‘ The person taking np an animal trespassing, after two days may begin his action to recover damages and charges and to enforce his lien, by filing a bill of particulars of his damages, together with a description of the animal on which the lien is claimed, with a justice of the peace, if his claim do not exceed two hundred dollars; * * V’
Section 4875, Code of 1942, provides for the institution of the proceeding in the circuit court if the amount claimed for damages by animals trespassing exceeds $200.00.
The defendants, upon whose lands the cattle were trespassing, did not follow any of the procedure outlined in the foregoing statutes. The proof discloses that although they claim to have verbally notified the plaintiff a number of times that his cattle were on their lands, they permitted them to so remain for two or three months immediately prior to institution of' these two replevin suits by the plaintiff, and after they had admittedly made it known to the plaintiff that they did not want him, his son, or his employees to come on their lands for any purpose, because of the fact that the cattle were difficult to corral without damage to the pasture, fences and crops of the defendants, and without the necessity of disturbing the defendants’ own cattle in the process of repossessing the cattle of the plaintiff.
And Section 4876, Code of 1942, provides that the owner of the animal, or person entitled to the custody, may, after suit is brought and before final judgment, replevy the animal by giving bond with sufficient sureties. And Section 4877 provides the manner in which such animals may be estrayed.
The proof upon the trial of the replevin suits is undisputed to the effect that the plaintiff’s cattle were
The court instructed the jury “to find for the defendants Floyd T. Brown and J. Leland Brown, and to
The instruction ignores the fact that the plaintiff’s testimony and that of some other witnesses disclosed that his cattle grazed upon only about 175 acres of the 350-acre oat crop where the defendants’ said cattle and those of the other people were grazing as a pasture. The defendants were growing no cotton, corn, soy beans or other commercial crops for the market, other than the remaining 175 acres of oats which were fenced off from the other half of the oat crop and from which other one-half the defendants harvested 6,000 or 7,000 bushels of oat seed.
Under Section 4871, Code of 1942, it is provided, among other things, that: “For breaking or entering into a pasture or waste ground, however, double damage shall not be recoverable, and the damages in such cases may be assessed as low as 40 cents for each horse, cow or hog and 20 cents for each of the other kinds of livestock.” (Italics ours) We therefore think that as to the 175 acres where there were from 175 to 200 head of the defendants’ cattle, together with those of John Schultz and of the Negroes, grazing as a pasture where the 23 head of the plaintiff’s cattle were trespassing there would be no liability for double damages against the plaintiff; and that therefore this instruction was misleading in that there was considerable testimony on behalf of the defendants seeking to show that the plaintiff’s cattle were fed silage, cottonseed meal and salt along with the feeding of the cattle of the defendants’ and of John Schultz and of some Negroes, and of substantial value. It was calculated to cause the jury to believe that they were entitled to allow the defendants
Moreover, if the plaintiff’s cattle trespassed on only the 175 acres of the oat field, where the cattle of the defendants and others were grazing as a pasture, there would be no recoverable item of damages “for breaking or entering into a pasture” so far as double damages are concerned. We do not think that a strict construction of this highly penal statute would permit the assessment of double damages for breaking and entering into that portion of the oat field which was planted for and used only as a pasture, which the proof shows to have been about one-half of the 350-acre oat-field, where the cattle of the defendants and of other persons were grazing every day. It is asserted in the brief on behalf of the appellees, defendants in the trial court, that the jury did not assess any double damages, but as to this we would not know, since we are unable to tell what items all of the $1,494.18 consisted of.
The court further instructed the jury that its verdict might be for the separate value of each cow involved, to be fixed by the jury, and in the total sum of $--------; and that the jury might further find for the defendants and fix their total damages at $---------
We think that it was proper for the court to authorize the jury to separately assess the value of each of the 23 head of cattle involved, and also their total value in order that the defendants would be protected as against the plaintiff and the sureties on his two replevin bonds for the collection of any actual damages that they may have sustained and proved on account of the cattle trespassing upon their lands, fences and crops, so that the cattle or their value may be forthcoming to satisfy any lien that they may have established by a
In the Calcóte case, supra, he, as owner of the cattle, sued out a writ of replevin and gave bond for the forthcoming of the 12 head of cattle which had been trespassing on the lands of the appellee, and prior to the trial the owner disposed of the cattle. Judgment by default was suffered by Calcóte and the issue of damages heard under a writ of inquiry, which is the normal procedure where a judgment by default is taken. In that ease the landowner May set up by way of a cross demand for damages, the following items: “(1) Damages to oat crop $100; (2) to land $50; (3) taking up cattle $2.50; (4) care and feeding of cattle $48.” The Court held that: “Section 4871 allows the owner of the invaded land double damages if the trespassing occurs, as it did here, ‘after the owner (of the cattle) has been notified of the first trespass or injury’. Yet, the damages allowed thereunder are only those incurred ‘for all injuries and trespasses committed by such animals by breaking and entering into or upon the lands, grounds, or premises of another’. Hence, the maximum allowable thereunder would be double the first two items of damage to crop and land, or a total of $300.” In other words, the court eliminated the last item as to “ care and feeding of cattle $48” as being not subject to the statute for the assessment of double damages. But the Court further said: “Since the cause is to be remanded for
We are therefore of the opinion that in the instant case the defendants were only entitled to have their lien established against the cattle for the amount of actual damages sustained by the defendants by reason of the trespassing of the plaintiff’s cattle upon their lands, fences and crops, the amount of which they should prove with a reasonable degree of certaintiy by a preponderance of the evidence as the proximate result of the fault of the plaintiff. That the judgment should have been in the alternative that the plaintiff and his surety should either restore unto the defendants the 23 head of cattle or their value, for the collection of the counter claim of the defendants for such damages, unless the plaintiff should pay the amount of damages assessed against him by the jury. The liability of the owner of livestock trespassing upon the lands of another in a stock-law district, for the actual damages caused by them is absolute, and the defendants were entitled to a peremptory instruction on liability for the amount of such damages as they might have proved by a preponderance of the evidence to a reasonable degree of certainty, but we are of the opinion that they were not entitled to a peremptory instruction that the cattle be restored to them, except on the condition that the plaintiff and the sureties on his replevin bonds should fail to pay to the defendants the damages so assessed. Since Section 4876, Code of 1942, provides that the owner of the animal, or person entitled to the custody, may, after suit is brought and before
In a cross-assignment of error and in their brief the defendant-landowners argue that the trial court was in error in not submitting to the jury the issue of both actual and punitive damages against the admitted owner of the 23 head of cattled involved. In this connection it should be observed that the defendant-landowners in their answer to these replevin suits alleged that these cattle of the plaintiff were “wild, unruly, predisposed to break through and jump over any enclosure and can not be herded and driven as cattle are nomally herded and driven, but must be captured, if captured (at all), by running said animals down on horses with lassoes in the old western style; * * And that by reason of the foregoing facts the defendants were unable, without great damage to their own herd of cattle and at considerable expense, to impound the said animals. Moreover, the defendant-landowners so testified at the trial, and they admitted that they had told the plaintiff that they did not want him or his help
The defendant-landowners denied that they had the plaintiff’s cattle in their possession or under their control, notwithstanding' the fact that they were wrongfully detaining them when admittedly forbidding the plaintiff to come and get them. The defendant J. Leland Brown testified that on December 7, 1954, he took the plaintiff through the defendants’ herd of cattle and pointed out to the plaintiff his own cattle, and yet he admitted that the plaintiff told him on that day “that he was coming down there for those cattle”, and that he, the witness, told the plaintiff that he did not want his own herd of cattle disturbed. He elsewhere admitted in his testimony, and had alleged in his answer, that there was no way for the plaintiff’s cattle to be repossessed without disturbing the herd of the defendants.
On the measure of damages the said defendant testified that “some of these cattle were in there all winter, some of them were in there a couple of months, some of them were in there a month, and some of them had been in there the previous winter.”
In the case of Masonite Corp v. Steede, 198 Miss. 530, 23 So. 2d 756, the Court, in reversing a judgment for the plaintiff and rendering judgment for the defendant recognized that damages must be shown with reasonable certainty, but that the jury is not required to determine accurately what defendant’s proportionate part of the damage was, but only that defendant’s part was not less than a certain percentage thereof, and then apportion the damage accordingly. In that case others
Insufficient facts were given to the jury by the witnesses upon which the full amount of this verdict could have been based with any reasonable degree of certainty, and the only instruction obtained by the plaintiff was that before the defendants can recover damages for the alleged damages set out in their claim, they must prove said damages by a preponderance of the evidence. In other words, no error contained in the defendants’ instructions was cured by any instruction granted for the plaintiff. Moreover, the jury in considering the amount of damages that may have been sustained on account of the trespassing of the plaintiff’s cattle on their land, fences and crops or pasture should have considered the question of whether or not the trespassing of the cattle
It was the duty of the defendant landowners to use all reasonable efforts to reduce the damage to their land, fences, pasture or crops, for the liability of which they intended to subject the plaintiff on a cross-claim against him for damages. Moreover, the plaintiff, whose liability for the damages would be absolute to the extent that they were proved to any reasonable degree of certainty, was entitled to shorten the period of the trespass of his cattle by removing them from the lands of the defendants. If it be true, as testified to by the plaintiff, that he, his son, and other helpers were forbidden to come on the lands of the defendants to repossess the cattle, and there is no substantial dispute in the testimony on that issue, then the defendants would not be entitled to any damage caused after the plaintiff offered to remove his cattle from the lands of the defendants and was prevented by them from doing so, or refrained from doing so because of the strenuous objection of the defendants.
We are of the opinion that the cause should be reversed and remanded for a new trial in accordance with the foregoing views as to the rights of the respective parties.
Reversed and remanded.