Barnum v. Vandusen

Hinman, J. The fact that the sheep, which caused the injury to the plaintiff, did not belong to the defendant, but were only in his care and custody, depasturing his field, may be laid out of the case, as upon the principle established in Smith v. Jaques, 6 Conn. R. 530. the defendant, for the purposes of this case, must be deemed to be their owner, and liable for damage done by them. 1. The principle that the owner of a domestic animal, not naturally inclined to commit mischief, is not liable for an injury committed by it, unless he has notice that such animal is accustomed to commit mischief, though undoubted, when properly applied, yet it has no application to this case. If the defendant’s sheep had communicated a disease to the plaintiff's, while rightfully upon the plaintiff's land, or in an adjoining enclosure, the principle, and the authorities cited in support of it, might have applied. But here, the defendant’s sheep, while trespassing upon the plaintiff’s land, communicate to the plaintiff’s sheep, a disease of which numbers of them die, and no sufficient justification being shown for the trespass, the question is, whether this communication of disease is such an injury as aggravates the damage occasioned by the trespass, and authorizes the plaintiff to recover damages for the loss of his sheep, as well as for the breach of his close. We think, it is such an injury. Indeed, the rule is believed to be universal, that any consequential damage, resulting from the trespass, and not too remote, may be declared on as matter of aggravation, and if proved, damages may be recovered for it. In the common case of trespass for breaking and entering the plaintiff's house and debauching his daughter, the debauching of the daughter is mere matter of aggravation; and a justification of the breaking and entry, is a full answer to the whole case; yet the matter of aggravation is, certainly, a principal ground of the damages recovered. And in trespass for destroying part of a mill, the plaintiff alleged an interruption in the use of the mill, and, the consequent loss of profits, and was allowed to recover for such injury. White v. Moseley, 8 Pick. 356. So, in Dickinson v. Boyle, 17 Pick. 78. it [205] was held, that all the damage of which the injurious act is the efficient cause, and for which the plaintiff is entitled to recover, in any form, may be recovered in the action of trespass. And in Anderson v. Buckton, 1 Stra. 192. the precise question involved in this case, was decided; and it was there held, that in trespass for the entry of diseased cattle, damage from infection may be stated in aggravation, and a recovery in such action will bar another action, in a different form, for the same injury. These, though a few only of the numerous cases that might be cited on this subject, are sufficient to show, that the charge of the court, was correct, “that if the trespass complained of, was proved, and no sufficient justification was shown; and if they found, that the plaintiff was entitled to recover; he was entitled to recover for the damages which accrued, by the impartation of disease, as averred in the plaintiff’s declaration, upon proof of the facts therein averred, without any proof of knowledge by the defendant, that the said sheep so in his custody, were diseased, at the time when, &c., and without any proof of malice, misconduct or neglect, on the part of the defendant.” 2. The plaintiff, on the trial below, was permitted to prove, for the purpose of affecting the damages, that the defendant, at the time of the trespass, did know, that his sheep were diseased; and that he was guilty of neglect and misconduct in relation to the custody of them; though the evidence was objected to, by the defendant, on the ground that there was no averment in the declaration of any such knowledge, neglect or misconduct in the defendant. That the circumstances which characterize a trespass, may be proved, in an action for the injury, to enhance damages, is a familiar elementary principle, and has been too often recognized, by this court, to be now made a question. The point was last made and decided, in the late case of Treat v. Barber, 7 Conn. R. 274. and it is enough to refer to the opinion of the court in that case, (p. 279, 80.) and to say, that we are entirely satisfied with the principle there laid down. But it is said, that the plaintiff ought to have alleged knowledge of the diseased condition of his sheep, to the defendant, and his neglect and misconduct touching the custody of them, before he could be permitted to prove it; and because there is no such averment in the declaration, it is said, the proof was [206] inadmissible. The object of compelling a party, in his declaration, to lay a foundation for the recovery of special damages, which do not necessarily arise from the act complained of, is, to prevent the surprise, which might otherwise ensue to the defendant, on the trial. It is therefore a general principle, that less particularity is necessary in the statement of matters of aggravation, than in the main allegations in the declaration. Stephens on Pl. 372. But the special injury, which the plaintiff had suffered, in consequence of this trespass, is stated in the declaration with great particularity. The only omission is, that it is not stated, that the defendant knew, that his sheep were diseased. But knowledge in the defendant, of this fact, was no part of the plaintiff’s special injury; it was a circumstance which characterized the trespass, inasmuch, as, if true, it tended to show a degree of carelessness and negligence in the defendant, in respect to restraining his sheep, which might properly be considered by the jury, in estimating damages; but it was not a fact necessary to be stated, in order to prevent surprise. The defendant was apprized of the plaintiff’s claim for special damages in consequence of the impartation of disease to his sheep. This, we think, is sufficient. We know of no rule of law, that compels a plaintiff in trespass to make any more definite allegations in respect to special damage, than such as were made in this case. 3. The defendant claimed, that the plaintiff’s fence was insufficient, and that the sheep entered the plaintiff’s close through such insufficient fence; and that the plaintiff was bound to keep said fence in repair: in answer to which claims, the plaintiff offered to prove, that the sheep were unruly, and would not be restrained, by an ordinary fence. This, though objected to, by the defendant, the court permitted. And in this, we think, the court was right. The 21st section of the statute relating to Fences, p. 255. ed. 1838. provides, that all damages done by cattle, horses, sheep, or swine, where the fence is sufficient, shall be paid by the owners of them; but if the fence is defective, then by the owners of the fence; and the 7th section of the statute relating to Pounds, p. 498., provides, that no person shall be entitled to a recovery for damages done in his enclosure, through the insufficiency of his fence, unless such damages were done by swine or [207] horses, or other creatures, that go at large on the commons, contrary to law, or by unruly cattle, that will not be restrained by ordinary fences. Taking and construing these two statutes together, as, we think, they ought to be construed, upon the principle regarding statutes relating to the same subject, and having one object in view, we think it manifest, that the legislature did not intend, that the owners of land should be compelled to fence against unruly animals of any kind. The case of Studwell v. Ritch, 14 Conn. R. 292. has no bearing upon this question. There was no question relating to unruly cattle, in that case. Upon the whole, therefore, we are of opinion, that there is no error in any decision of the court below; and of course, no new trial is advised. In this opinion the other Judges concurred. New trial not to be granted.