Roach v. Trottie

McCay, Judge. 1. Whilst we should be very slow to apply to an action of trespass those nice distinctions between trespass vi et armis, and trespass on the case, which the English writers maintain, yet our statute, Revised Code, section 3256, requires the plaintiff, “ plainly and distinctly to set forth his charge or demand.” It requires a considerable stretch to say that this declaration, charging that the defendant by force, broke into plaintiff’s close, and with his feet and one hundred cattle, trampled his crop, (with the actual facts as they appear,) distinctly sets forth the plaintiff’s charge. Only in one view of it does the writ, even by such a stretch, do this. If defendant, without any permission or consent of the plaintiff, did this by himself or servant, having thus committed a trespass by interfering with the fence at All, he is liable as a trespasser for all the consequences. 2. But if he entered by consent of the plaintiff, to repair the fence, he is only liable if he repaired it negligently. The Judge, in his charge, wholly ignored the evidence of Lawshe, that the plaintiff consented, and furnished the horse, as well as the evidence of Benson, going to show that he was jointly 258 interested, and that he consented. And the fact of the joint note is itself some evidence of Benson’s interest. The jury were told that if Lawshe, as the agent of defendant, by his command or assent, took down the fence and the cattle got in, the defendant was liable. This made the defendant liable, even if plaintiff consented, and even if there was no negligence. We doubt (if there was consent) whether the plaintiff could recover at all, under the charges of the declaration, unless the negligence was of the grossest character, such as in cases of injuries to a person, would make criminal negligence. We think there ought to be a new trial, because the Judge, in his charge, entirely ignored the evidence going/to show that plaintiff consented to the entry of Lawshe, and to the repair of the fence; because, if he did this, the defendant would only be liable, if, in doing this, Lawshe was negligent, and damage came from that negligence. Judgment reversed.