199 Mich. 655 | Mich. | 1917
Lead Opinion
The plaintiffs, father and son, farmers, are breeders of shorthorn Durham cattle. They own two farms. Robert Eager, one of the defendants, owned a farm adjoining. In the summer of 1913, William Bamber, the appellant, who is a farmer, was rebuilding his barns and was the owner of a Holstein bull calf, nine months old in June, 1913. Mr. Bamber made an arrangement with Louis Eager, brother of Robert Eager, for the keeping of the bull until defendant Bamber rebuilt his barns. After Louis Eager had the bull for some weeks, he made an arrangement with Robert Eager to turn the bull on Robert Eager’s
“I charge you that the statutes of this State pertaining to the running of animals ‘at large’ have no application to the facts in this case; that the plaintiffs cannot recover in this case on the count in their declaration charging the defendants with permitting the bull in question to run ‘at large.’ ”
The court refused to give this request, but charged the jury, in substance, that they could find a verdict against both defendants unless they believed that William Bamber had leased the bull to Louis Eager, and that at the time of the trespass the bull was in the control and possession of Louis Eager by virtue of the lease, in which case they should render a verdict for defendants upon the first count in the declaration. He also charged the jury, in substance, that they might find a verdict against William Bamber under the second count under the statutes above referred to, if the line fence was. defective and defendant Bamber permitted his bull to remain on Robert Eager’s land, knowing the condition of the fence to be defective. The judgment was against William Bamber alone for $50. The questions involved are whether the statute prohibiting the “running at large” of male animals applies to the facts in this case, and whether the court erred in refusing to give the request to charge above quoted.
“Sec. 7305. The people of the State of Michigan enact, That, if the owner of any bull, stallion, boar or ram shall allow the same to go at large out of his inclosure, he shall forfeit the sum of five dollars for such offense, to be recovered on complaint before any justice of the peace of the county in which such owner may live, and twice that amount on any subsequent conviction: Provided, That such complaint shall be prosecuted within thirty days next after such animal shall be found at large as aforesaid.”
Section 7306 provides as follows:
“In addition to the penalty prescribed in the foregoing section,, the owner of said bull, stallion, boar or ram thus found going at large, shall be liable to the owner of any cow, mare, sheep or swine for any and all damages prising from the going at large of such animals as aforesaid to be recovered on any suit brought before any court of competent jurisdiction.”
The question at once arises: What constitutes “running at large” within the meaning of said act? Counsel. insist:
“That term [running at large] has been defined many times by the courts under similar statutes, and the rule is well settled that ‘running at large’ means ‘strolling without restraint or confinement; rambling at will.’ ” Eklund v. Toner, 121 Mich. 687, 689 (80 N. W. 791).
“Running at large is used in the statutes in the sense of strolling without restraint or confinement, as wandering, roving or running at will; unrestrained.” 3 C. J. p. 179. See cases cited, note 73..
“Animals are not running at large if they are under the control of a person having the right of control.” 3 C. J. p. 179.
They cite many other authorities, and claim that the bull was not within the statute when committing the trespass.
A similar statute found in chapter 14 of the laws of Wisconsin, 1903, is construed in the case of Kopplin v. Quade, 145 Wis. 454 (130 N. W. 511). In that case a judgment for damages given to plaintiff under circumstances like those involved in the instant case was affirmed.
Judgment is affirmed, with costs to the plaintiff.
Dissenting Opinion
(dissenting). I am not persuaded that an animal restrained within an inclosure with other cattle is “at large,” within the meaning of the statute. The judgment should be reversed.