Woods v. Carty, 110 Mo. App. 416

Woods v. Carty

110 Mo. App. 416 | Mo. Ct. App. | 1905

BLAND, P. J.

(after stating the facts). — The only error discussed on the oral argument and in the briefs of counsel is .the giving and refusing of instructions. Appellant’s contention is, that notwithstanding his field was not inclosed by a lawful fence through or over which respondent’s hogs entered, he had a right to drive them out and, if in doing so he used ordinary care not to injure them, he is not liable though he, in fact, killed, maimed and wounded them. Section 3294, chapter 28 (entitled “Fences and Inclosures”), Revised Statues 1899, provides: “All fields and inclosures shall be inclosed by hedge, or with a fence sufficiently close,” etc. The next section describes what shall constitute a lawful fence. The two succeeding sections (3296, 3297) are in respect to the liability of owners of stock that enter the fields of another inclosed by a lawful fence. The next section is the one upon which the suit is predicated and reads as follows:

“If any person damnified for want of such sufficient hedge or fence, shall hurt, wound, lame, kill or destroy, or cause the same to be done by shooting, worrying with dogs, or otherwise, any of the animals in this chapter mentioned, such person shall satisfy the owner in double damages with costs.” [Sec. 3298, R. S. 1899.]

It seems to me that, reading sections 3294 and 3298 together, the Legislature intended that the proprietor of any field or other land, from which he wished to exclude animals running on the common range, must inclose it by such a fence as is described by section 3295; that if the proprietor incloses any field by an unlawful fence (a fence not filling the requirements of the statute) and animals running upon the common range enter his field over or through such unlawful fence and. do him damage, if he, in the language of the statute, *423“shall hurt, wound, lame, kill or destroy or cause the same to he done by shooting, worrying with dogs, or otherwise,” any of the animals mentioned, he shall be liable to the owner in double damages, and that this is so, irrespective of whether he was careful or negligent, humane or malicious in driving them out. Under the statute it was appellant’s duty to inclose his field with a lawful fence to prevent animals running at large from getting into his field. By neglecting the performance of this duty, appellant was primarily guilty of negligence per se and it may be justly said that it was through his own neglect the respondent’s hogs entered his field and damaged his crops. Under the circumstances, the hogs were not trespassers (Kaes v. Railway, 6 Mo. App. 397; Heald v. Grier, 12 Mo. App. 556) as the owner might permit them to run on the common range, and the appellant, if he would fence against them, was required to do so by a lawful fence. [Bradford v. Floyd, 80 Mo. l. c. 211.]

Appellant refers to Hughes v. Railroad, 66 Mo. 326, and Heald v. Grier, supra, as holding that the proprietor is under no legal obligation to inclose his land. This is so in the sense that the Legislature had not made the duty to fence an absolute one. But if the proprietor would protect himself from damage by animals running at large on the common range or look to the owner of such animals for reparation if his crops are damaged by them, he must, under the statute, show that his field was inclosed by a lawful fence. The converse of the proposition is equally true, to-wit, if a proprietor whose fields are not inclosed by a lawful fence would avoid liability for injuring such animals in driving them out of his fields, he must do them no injury.

I think the instructions given clearly and correctly state the law of the case and that those refused did not correctly state the law. It follows that the judgment should be affirmed and it is so ordered.

All concur.