182 Ky. 833 | Ky. Ct. App. | 1919
Opinion op the Court by
Reversing.
This action was instituted by the appellant, Stephens, whom we will call the plaintiff, against the appellees, Joseph Schadler, and Ed Casson, whom we will call the defendants, to recover damages, suffered by the plaintiff, on account of trespasses, committed by the dogs of the defendants, against the plaintiff’s sheep, growing tobacco, grass and alfalfa, and in his petition and amended petition,' is, also, included a count for damages suffered by him, for loss of time, which he was compelled to lose in driving the dogs, from his premises,in attempts to protect his property. Motions were made by the defendants, to require the plaintiff to set out his causes of action more certainly ancj definitely. These motions were sustained, and in an endeavor to comply with the rulings of the court, the plaintiff filed two amended petitions. The defendants, then moved the court to require the plaintiff to elect against which of the defendants, he would prosecute the action, and over his objection, the motion was sustained. The defendants, then moved the court to require the plaintiff, as is stated in the record, “to separate, paragraph and number his petition & state separate cause of action.” This motion was, also, sustained. The plaintiff declined to further amend his petition, whereupon on the motion of the defendants, the court adjudged, that his petition be dismissed. From the judgment, the plaintiff has appealed and the soundness of the rulings of the court, with reference to the two motions, will be considered, respectively, in the order, in which they were made.
There is, however, n.o doctrine of the law more firmly established, than if two or more persons unite or cooperate with each other, in committing an act, which is a wrong to another, or clo it under circumstances, which will fairly charge them with intending the consequences of it, each of them is guilty, of. the wrong, and liable for the consequences of it, for all engaged.in the tort., Bonte v. Pastel, et al., 109 Ky. 64. For such joint tort, the injured party, may maintain an action against all- the .wrongdoers, jointly, or he may sue one separately. Buckles v. Lambert. 4 Met. 333.
Section 68 Ky. Stats, provides: “Every person owning, having or keeping any dogs, shall be liable to the party injured for all damages done by such dog. . , . ”
Subsection' 5 of section 68a Ky. Stats, provides:
“Every person owning or harboring a dog, shall be liable to the party injured,-for all damages done by such'dog: . . . ’ ’ Hence, both the owner and the harborer'of a dog is liable for compensatory damages, for 'all injuries, to another inflicted by such dog, regardless’ of whether the dog be of a vicious nature, or’the knowledge of the owner or harborer of his nature. Faulkner v. Hall, 153 Ky. 416; Bush v. Wathen, 104 Ky. 548; Myers v. Zall, 27 R. 167; Koestel v. Cunningham, 97 Ky. 421. The trespasses committed by the dog, are to be treated as the trespasses of the one, who owns or harbors the dog. Tiie petition and amendments allege, that, while certain of the dogs, which committed the alleged trespasses', were owned by-the defendant, Casson, and others of them were owned by the defendant, Schadler, who, also, harbored all of the dogs, the trespasses were committed,'jointly, by the dogs owned by both defendants; that, in committing the trespasses, the dogs of both defendants, were together and unitedly and in co-operation with each. other, did the acts complained of. Each of the defendants, was therefore, liable for the damages done by his co-defendant’s dogs, as well as the damages done by his own dogs.
(2) The order of the court, which féquired the plaintiff, “to separate, paragraph and number his petition & state separate cause of action,” was, as we presume, intended tó be an order to require the plaintiff to set out •each of the different causes' of actión' relied upon, in a separate paragraph'and to number same. Section 113, subsections 2 and 3, of Civil Code, próvidé, that a pleading may contain a statement of as many causes of action, as there may be grounds for in behalf óf the pleader, and if there is more than one cause of action stated, each must be stated in separate, numbered paragraphs, and that it is the duty of the court to enforce these provisions; and for that purpose, may dismiss the action, without prejudice, or strike a pleading from the record of the case, or allow a new pleading. In the instant case, the court dismissed the petition, but failed to do s'o, without prejudice to a future action. To determine whether the court should have, in the instant case, ordered a dismissal of plaintiff’s action,hponhis refusal to further amend his petition, and to sét out his causes óf action, in additional paragraphs, it is necessary to 'consider the statements of his causes of action. The grounds of his action, as appeared from the petition as amended, consisted of three classes of 'injuries, suffered by him, on account of the trespasses by the dogs of defendants; (1) injuries to his sheep; (2) injuries to his crop's, and (3) loss of time, suffered in driving away the dogs, and protecting his cattle from them. The causes of action, on account of injuries to the sheep, caused by the dogs coming, upon the plaintiff’s premises and frightening and chasing the sheep, and thereby, causing ewes to abort and lose the unborn lambs; crippling the ewes and lambs; frightening the ewes away from newly born lambs, and, thereby, causing the deaths of the lambs; chasing and causing to become overheated, newly docked lambs, and, thereby, causing them to lose blood and retarding their growth,
In another paragraph, it is alleged, that the dogs of the defendants had entered upon the lands of the plaintiff, from one to three times, each week, during the preceding five years, and had, by their conduct and actions, frightened the plaintiff’s sheep-, upon each of these occasions, causing them to run, and by their fear of the dogs, were driven from the shade in the summer, and from the shelter of the barns, in the winter, and were, thus, exposed to the heat of the sun, which together with their exertions in running, caused them to become overheated, in summer, and to expose themselves to the cold and rains in winter, and were, thereby, also, driven from feeding in the pastures, because of the presence and actions of the dogs, and that these continued aggressions of the dogs, from day to day, kept the sheep- in a frightened and excited condition, and caused the ewes to fail to conceive and bear lambs, in which the chief value of maintaining sheep- consists, and from these repeated trespasses, the sheep were injured in their growth, flesh and condition, and the damages resulting, were laid at a gross sum. The plaintiff alleges, that he is unable to state the facts, with any greater detail, and this seems apparent. Strictly, each occasion, upon which the dogs entered and frightened the sheep, was a separate trespass, and if injury resulted, the damages could be recovered for it, but, it is apparent that the damages for one trespass toward effecting the results alleged, would be infinitesimal, and impossible of ascertainment, but, this should not deprive the plaintiff of relief, if the injuries, which resulted from the frequently recurring trespasses, as a final result, produced the results complained of. With this view, the divers trespasses would necessarily have to be considered as one continuing trespass, and constituting but one cause of action. The chief reason, for requiring’ that each distinct cause of action, be set -out In a separate paragraph, is to apprise the defendant of what he is called upon to answer and the nature and extent of the evidence, which may be. adduced against him. Grissom v. Gillon, 3 Mon. 217. The allegations of the para
The judgment is therefore reversed, and cause remanded for proceedings consistent with this opinion.