189 Iowa 1198 | Iowa | 1920
Lead Opinion
“Defendant herded his cattle upon the land; but the evidence wholly fails to show how long the land was so used by defendant, how many cattle he herded, and the value of such use, or any other fact which would enable the jury to estimate the damages, if any, which plaintiff sustained. It appears iliat other persons herded cattle upon the land, during the time it was used by defendant.”
And we held that not more than nominal damages Avere due. In Foster v. Bussey, 132 Iowa 640, at 643, 644, Ave reach the same conclusion, saying:
“The stock of different people Avere in the corn at different times, and the injuries thereto Avere distinct and separate. There Avas nothing to enable the jury to estimate the damages caused by that of each or of defendant.”
Of course, the mere statement of a trial rule has no bearing on whether evidence meets or fails to meet such rule. Of course, on such facts as are found in these tAVO cases, this plaintiff could have no appellate relief, because we Avill not reverse for failure to obtain purely nominal damages. But the question remains Avhether the evidence is such as is commented upon in the said cited cases. The appellee insists, of course, that the evidence here is, in substance,, AAdiat it was there, and says that the damages shown AArere speculative, problematic, and conjectural,- and that, therefore, no recovery beyond nominal damages avus warranted. But aau) are of opinion that the evidence in this case is not so speculatiA’e and not so Aroid of a basis upon Avhicli a jury could estimate damages as that the trial court aauis justified in holding, as matter of laAAr, that the jury had no material upon Avluch to aAvard beyond nominal damages.
True, the plaintiff, too, had hogs run in the cornfield AA'hicli the hogs of the defendant injured. True, the jury could find that it was difficult to ascertain just AAdiat damages had been caused by the hogs of defendant. For it is
But the jury could also find, on the testimony of the Avitness Dorothy, that, on' the one side of the field farthest from the line fence, only a few acres Avere “hogged,” and that, from there on through the middle of the field/ there was no more damage until one got to the east end, AA'here Avas the hole through which the defendant’s hogs entered the plaintiff’s land. The jury could find, from the testimony of this witness, that many circumstances indicated that the hogs of defendant did their injury at a spot quite distinct from the territory covered by those of plaintiff. The jury could reasonably make the same deductions from the further testimony of the Avitness Riley, and could believe the statement of McClary, that several with him “examined the entire field, so that Ave could tell Avhose hogs had destroyed the corn.” And if it believed the witness Dorothy, they could find: “Mr. Reed made no denial, Avhile we were there, but what his hogs had eaten the corn.”
Nor is this a case where the amount is pure conjecture, and Avhere there is no tangible evidence upon AAdiich a jury could estimate damages. = The Avitness Dorothy testified he was a farmer, and that, in his opinion, the corn destroyed by the defendant’s hogs would equal at least 200 bushels; and the witness McClary, also a farmer, testifies to like effect. McClary adds that he and Dorothy made an estimate as to the amount of corn destroyed, and Dorothy said they estimated four acres entirely gone, and that he thinks there was more than that damaged; that it was possibly five acres; that they estimated the loss would amount to about four acres of absolutely Avasted com,'which, in his opinion, would have gone 50 bushels to the acre.
Concurrence Opinion
(specially concurring.) I disagree with the discussion in the opinion, but concur in the reversal. The rights and obligations of the parties are statutory, and are fixed by Chapters 3 and 4 of Title XII of the Code. Section 2313 provides:
“Any animal trespassing upon land fenced as provided by law may be distrained by the owner of such land, and held for all damages done thereon by it, unless it escaped from adjoining land in consequence of the neglect of such landowner to maintain his part of a lawful partition fence. The owner of the land from which such animal escaped shall also be liable for such damages if it escaped therefrom in consequence of his neglect to maintain his part of a lawful partition fence,” etc.
Section 2315 gives an action for damages without distraint, upon the same condition. Section 2367, Code Supplement, 1913, provides:
“In case adjoining owners or occupants of land shall use the same for pasturing sheep or swine, each shall keep his share of the partition fence in such condition as shall restrain such sheep or swine.”
Code Section 2368 provides that the chapter is alike applicable “where stock is restrained from running at large as where not so restrained.”
In the light of the foregoing statutes, I do not agree that plaintiff’s neglect, if any,, was, as a matter of law, not the proximate cause of the damage, as held in the opinion. Nor do I agree that the fact that Section 2314 prohibits swine from running at large is a controlling consideration; nor does such fact make the liability of the owner of the hogs either greater or less than it Avould be in the case of escape of cattle or other stock upon plaintiff’s land. On the first point, if these hogs Avere lawfully upon defendant’s
I specially disagree, therefore,, with that part of the opinion which holds that the effect of Section 2314 was to “make it the duty of this defendant to prevent the escape of his hogs upon the land of his neighbor.”