82 Ga. 732 | Ga. | 1889
These parties owned adjoining farms, hut had between them no dividing fence. The way was open for cattle to pass from the premises of one to those of the other. There was an agreement between the parties that a partition fence should be dispensed with, and that each should keep his cattle off of the land of the other. Parrott was engaged in the dairy business, and kept a herd of animals which he grazed upon his side of the dividing line, and they sometimes trespassed upon Tumlin, and had frequently injured his crop. Tumlin as frequently remonstrated, and repeatedly gave notice that they must be kept off. Finally, on one occasion, whilst' the animals were grazing, under the.care and watch of Parrott’s servants, in consequence of the negligence of the servants, they escaped and again trespassed upon Tumlin’s land and crops. He discovered them, and with a Winchester rifle shot and killed several of them. Thereupon Parrott brought against him an action for damages, founding it expressly on section 1445 of the code, which section is as follows: “If any trespass or damage shall be committed in any enclosure, not being protected as aforesaid, by the breaking in of any animal, the owner of such animal shall not be liable to answer for the trespass; and if the owner of the enclosure shall kill or injure such in any manner, he is liable for three times the damage.” The protection here referred to is that of a lawful fence as defined or described in the three preceding sections. These sections make no provision
At the trial the declartion was amended by adding a count which claimed exemplary damages, independently of section 1445 of the code. The defendant objected to the allowance of this amendment, on the ground that it introduced a new cause of action; but the objection was overruled. The evidence made out the plaintiff’s case substantially as above detailed, and showed that the animals killed were of the value of $190 to $200. The jury found a verdict for $116.66, basing it expressly on the count added by amendment, the court having charged them that upon that count they could find for the plaintiff the actual damages sustained by him, if they believed the evidence authorized a recovery to that extent, and did not entitle the plaintiff to the triple damages for which the suit was originally instituted. The defendant made a motion for a new trial, which was denied.
Judgment affirmed.