128 P. 243 | Okla. | 1912
This action was originally filed August 8, 1910, in the justice court of Pontotoc county by J. A. Pryor against Walter Sharrock and others for possession of a hog valued at $10, and alleged to have been unlawfully distrained *306 by said Sharrock. Defendants answered by general denial, and by cross-plea alleged that the hog in question was breachy, had broken through a lawful fence and destroyed defendants' crop to the amount of $50, for which amount defendants asked judgment. The case was tried to a jury in the justice court, resulting in a verdict in favor of defendants in the sum of $50. Plaintiff appealed to the county court, where the cause was retried. A peremptory instruction in favor of plaintiff was given by the court, pursuant to which instruction the jury returned a verdict in favor of plaintiff and denied defendants any damages. Judgment being rendered upon this verdict, the defendants appeal. The plaintiff made no other contention, except that the hog was unlawfully distrained, and that he was entitled to possession thereof, and showed that by virtue of an election held in that district hogs were permitted to run at large. Defendants contend that they had a lawful fence, and submitted proof tending to maintain such contention, and that the hog in question was very breachy, and had repeatedly broken through their fence and destroyed corn to the amount of $50.
There could be no question but what, under the law, plaintiff was entitled to the return of his hog. The only question is whether the defendants were entitled to damages for the injury done by the hog. This, of course, depended on whether, under the regulation of that community, hogs were allowed to run at large, and whether, if so, the defendants had a lawful fence. There seems to be no contention but what there was a regulation in force allowing hogs to run at large in that district. Section 195, Comp. Laws 1909, authorizes county commissioners of any county to exempt their county, or any portion thereof, from the herd law provisions, and to provide, by an election for such purpose, for the running at large of swine, sheep, goats, etc.; and it appears from the record that at an election the voters of that district had determined in favor of permitting swine to run at large. This being true, the remaining question is whether defendants were entitled to judgment for the damage done by the hog in question, and this must be determined from the fact whether or not defendants had a lawful fence, or such a fence *307 as would ordinarily keep hogs out. While our statute (section 188) defines a lawful fence, it does not undertake to define what would ordinarily be a hog-proof fence; and, inasmuch as the statutes do not define what would constitute a lawful hog-proof fence, then the issue before the court was whether, as a matter of fact, defendants' fence was such a one as would keep out ordinary hogs, and whether or not the plaintiff's hog was unusually breachy. If the defendants had such a fence as was proof against the breach of ordinary hogs, and, notwithstanding this fact, the plaintiff's hogs were so breachy that they would break through and get into defendants' crops, we think defendants would certainly be entitled to recover for the damages done. These were questions of fact which should have been submitted to the jury, and the court erred in refusing to submit such questions to the jury, and erred in directing a verdict.
Defendants had not pursued their right to damages under sections 168, 169, Comp. Laws 1909, but sought recovery in an action at law for the damages sustained, and, as their right of recovery depended upon the fact whether they had a hog-proof fence, and whether the plaintiff's hog, or the hog in question, was breachy, and having offered testimony in support of these facts, they had the right to have them submitted to the jury for determination; and if the jury found these facts in their favor, and upon such finding gave them a verdict for damages done by the hog, then, under section 190, Comp. Laws 1909, defendants had a lien on such hog for such damages.
We think, therefore, from the record before us that the court erred in taking these questions from the jury and directing a verdict in favor of plaintiff.
The judgment should be reversed.
By the Court: It is so ordered. *308
