Kitchens v. Elliott

HEAD, J. — The demurrer to the first count of the complaint was manifestly bad. The question is raised, on this appeal, by demurrer to the second count of the complaint, and by several other methods, whether the said second count, which relies for recovery upon the breach by the. defendant of the city ordinance therein set up, in suffering his horse to run at large in said city, shows a valid cause of action against the defendant for the injury which was done to [297] plaintiff’s mare and colt by the horse while so running at large. It is contended, in substance, by the defendant, that the said count fails to show that the plaintiff suffered any special injury which was the natural and proximate result of the breach by the defendant of the public ordinance, and that without such special injury the plaintiff has no cause of action. The position, in effect, is, that in so far as the count shows, the plaintiff, directly and proximately, sustained no other injury than such as was shared by the public at large. It is undoubtedly true, that where the wrongful act complained of consists in the violation of a public statute or ordinance, a plaintiff, suing for such wrongful act, has no cause of action, unless he shows, by proper allegation, that he did sustain special damage by reason of the breach, not shared in by the public at large. Thé principle is the same as obtains in the law of public nuisance. If one commits a public nuisance, no one can sue the wrong-doer for damages resulting therefrom, except such as he shows resulted specially and peculiarly to him, as the natural and proximate consequence of the nuisance. The wrong complained of here is the violation of the ordinance. The special damage claimed is the injury done by the loose horse to the plaintiff’s mare and colt, and no other. The question then is, was such damage the natural, probable and proximate result of the breach of the ordinance? We may state, as of judicial knowledge, that the purpose of the adoption of this ordinance was to prevent depredations and injuries and annoyances which horses running at large in the city might, and naturally would, inflict upon the persons and property of others, lawfully in the streets ; chief among which is the frightening of other animals in use upon the streets, causing them to do damage. These are matters of common knowledge which the courts will not ignore. Hence, a party violating the ordinance, does so with knowledge that one of its natural and probable consequences may be, that his horse, so unlawfully running at large, will frighten other horses and cause them to ' inflict personal and special injury to the persons or property of others. The result is, that the second count of the complaint sufficiently shows that the plaintiff proximately sus [298] tained special damage by reason of the breach of the" ordinance ; and we are of opinion that the several measures of damage, stated in the said count, come within the principle. The demurrers to the second count, as well as the motions to strike certain parts thereof, were properly overruled. The fourth plea was manifestly bad, and the demurrer to it was properly sustained. The several objections of the defendant to proof of the special damage alleged in the complaint were properly overruled. We are compelled to hold that the second charge requested by the defendant (which was the general affirm-, ative charge on the' first count) ought to have been given. The bill of exceptions contains all the evidence, and there is none whatever tending to prove that the defendant had knowledge of the alleged vicious and mischievous disposition of the horse. This was an-essential allegation and without proof of it, there could be no recovery under the first count. It is a question whether the general affirmative charge on the whole complaint, requested by the defendant, ought not to have been given. We have seen the fatal defect of proof of the first count. The second count alleges that defendant’s horse was prone and accustomed to do mischief. It is insisted that this is descriptive of the animal which did the injury — descriptive of one of the means by which the injury was done. In many decisions of this court it has been held that allegations which are descriptive of the offense or wrong or the means by which it was committed, though unnecessary to have been made, yet being made, are required to be proved. There is no proof of the allegation in question. As the judgment must be reversed for another error, we will leave the question as now presented, in this case, undecided. It will not likely arise on another trial. Reversed and remanded.