167 Mo. App. 485 | Mo. Ct. App. | 1912
This is an action in replevin originating in a justice’s court. On appeal, plaintiff obtained judgment, and the court, on motion, granted the defendant a new trial. From this order, plaintiff appealed.
On August 6, 1911, plaintiff’s cow entered the premises of the defendant and damaged defendant’s corn. The defendant restrained her and claimed damages and compensation from the plaintiff under Art. 5, Ch. 6 of the Revised Statutes of 1909, concerning “animals restrained from running at large.”' The parties agreed that this law was in force in Polk county, the scene of the action. Section 772 of this article provides that domestic animals running at large may be restrained, and lays down a rule as to giving the owner of the animal written notice within three-days of the taking-up and requiring the notice to state the amount of compensation for feeding and keeping such animal or animals and damages claimed. Section 773 is as follows. “When notice not necessary.— If it shall appear and be proven on trial that the owner or owners of such domestic animals, as set forth in section 772, shall have actual notice that his or their
The eviden.ce in this record shows that defendant restrained plaintiff’s animal on the evening of August 6, 1911 (Sunday), and personally notified plaintiff, who resided nearby. We quote from defendant’s testimony: “The weather was hot and dry and I told him (plaintiff) I would like for him to come and get the cow. He wanted to know what the damage was and I told him that I would charge him a dollar or what the law allowed to putting her up and for the damages; I thought the allowed fifty cents for putting one up but I found out later that it was only twenty-five. He said all right; he made no objection whatever. He said he did not have the money but he would do whatever was right about it. I said, ‘I have been turning your stock over to you and you have been promising to pay me but you have never paid me a cent.’ In fact I had been turning his stock over to him time and again and I told him that. He said he did not have the money but would borrow it. I told him that while he was doing that — it was only a short time before this when I had turned over to him his stock and he promised to pay me and he never paid me a cent or said a word about it — couldn’t he borrow that other, too, and bring it, and then he flew mad and said he wouldn’t do it; he said he was fixing to go to Buffalo and would be gone about four days; that he wanted me to milk the cow and take care of her and that when he came back he would come and settle. I said, ‘By that time I don’t know what might happen.’ After he got mad he would not give me any satisfaction and I came on home and allowed he would come and get the cow. If he had come and done the right thing I would have
The plaintiff’s version is as follows: “On Sun day, August 6, Mr. Cowden, the defendant, came and told me that he had taken up my cow. I said, ‘I do not want my cow on my neighbors,’ and asked him if she had damaged him and he said she had.. I said, ‘What is the damage?’ He said, ‘Well, I reckon about a dollar will pay the damages.’ I said, ‘Well, that is not too much but I haven’t got the money. I will go out and get it and come back and get my cow.’ He said, ‘When you go to get that, fetch me another dollar and fifty cents for the damages for the time your cow was on my oats.’ I said, ‘I will pay you the other money like I agreed to pay it when I get so that I can and when you get some men to assess the damages, and whatever the men say I will pay whether it is one dollar and fifty cents or five dollars.’ He said, ‘I will hold your cow for that.’ I said, ‘You cannot do it.’ He said, ‘I will show you whether I can or not.’ Then I said, ‘Take good care of the cow as she is giving lots of milk.’ He said, ‘I will do just as I please about it.’ And then I went off and never talked to Mr. Cowden any more that time. ’ ’
It is apparent to any one that no agreement was reached between these parties and hence section 773 is the governing statute in this case. This being true, no written notice was necessary as required by section 772.
Defendant fed, watered and milked the cow on Monday. On the morning of this day defendant was in Goodson, a town nearby, and a man named Tom Gladdon saw him and told defendant he had a dollar for him to settle the matter but defendant refused to accept it at that time and said plaintiff could get the cow at any time that day by paying two dollars.
Oh Tuesday morning about seven o’clock, defendant sent his son to plaintiff with the proposition that
At this stage of the controversy, defendant, after consulting a lawyer and a justice of the peace, decided that he should give plaintiff a written notice, and on this day (Tuesday) he delivered the following notice to plaintiff’s wife:
“G-oodson, Missouri, August 8, 1911.
“Mr. L. P. "Warren:
“I herewith notify you that I have got your cow up and you can come and pay damages and you can take her.
“Tours,
“W. T. Cowden.”
In giving this notice, defendant was evidently attempting to comply with section 772, but if that section governed this case he would be out of court because he did not specify in the notice “the amount of compensation for feeding and keeping such animal and damages claimed.” Of course, it need hardly be said that the fact that he attempted to give a written notice as required by section 772 would not change his rights under the law. [Bowles v. Abrahams, 65 Mo. App.-10.]
The defendant then applied to a justice of the peace for the appointment of appraisers, following section 774, and they met on August 12, viewed the damage, and made a written report in duplicate assess
In the meantime — on August 8 — plaintiff: instituted an action in replevin before a justice for the recovery of the cow. The verdict in the justice’s court was for the defendant and was signed by four of the jurors. In the circuit court, by agreement, the case was tried by a jury of six men, and five of them signed the verdict for the plaintiff. Eleven instructions were given to the jury and five requested instructions were refused.
The jury were instructed that it was admitted that plaintiff was the owner of the cow and that the issues should be found for the "plaintiff unless they found and believed from the evidence “that said cow on the sixth day of August, 1911, was running at large outside the inclosure of the plaintiff and was trespassing upon the premises' of the defendant and that the defendant took up said cow and that he, the defendant, thereupon gave notice in writing to plaintiff that he had taken up said cow, and in said notice stated the amount of damages claimed by Mm and the amount of compensation for feeding and keeping said cow; or else that the plaintiff had actual notice that said cow was restrained and by whom restrained' and that he, the plaintiff, and the defendant could not agree upon the amount of damages demanded.”
As we have stated, the jury found the issues for the plaintiff. In its order granting defendant a new trial the court specified two grounds, viz.: (1) Because the court erred in giving instructions I, II, III and IV in favor of the plaintiff. (2) Because the verdict of the jury is against the law and the weight of the evidence.
On the state of the evidence as to what occurred between the plaintiff and the defendant on Tuesday,
“If the defendant sent the plaintiff word by his. son that he would take one dollar and a half for his damages, and the plaintiff on the same day and before the defendant had been to any further expense or trouble in caring for and feeding said cow, offered to pay the amount asked by the defendant, then there was nothing to arbitrate and you must find the issues for the plaintiff.”
We think this instruction was too favorable if anything for the plaintiff, and in case of retrial, if the plaintiff shall have deposited with the trial court the sum of one dollar and fifty cents, the following instruction should be given in its place:
“If the defendant sent the plaintiff word by his son that he would take one dollar and fifty cents for his damages and compensation, and the plaintiff on the same day and within a reasonable time accepted the offer and on the same day tendered the one dollar and fifty cents, the amount asked by the defendant, then there was nothing to arbitrate and you will find the issues for the plaintiff.”
Instructions I, II and III were given by the court at plaintiff’s request and defendant saved no exception. The court gave instruction IY of its own motion and defendant saved no exception. Defendant himself could therefore make no complaint because of the giving of these instructions, and the question is raised whether the court may notice of its own motion a supposed error in the giving of these instructions and grant a new trial on that account. That it may is established by man}?- authorities. [Head v. Randolph, 83 Mo. App. l. c. 287; Ewart v. Peniston, 233 Mo. l. c. 707, 136 S. W. 422; Parker v. Britton, 133. Mo. App. 273, 113 S. W. 259; Lovell v. Davis, 52 Mo. App. 342; Baughman v. National Waterworks Co., 58 Mo. App. 576; 29 Cyc. 921.]
We think the order granting a new trial should be affirmed, and it is so ordered.