Staples v. Steed

SAYRE, J. The plea of defendant’s non-residence was without merit. — Code 1907, § 6110; Hoge v. Herzberg, 141 Ala. 439, 37 South. 591. The demurrer was probably general; but if so the plea was incapable of amendment so as to make it good and the technical error involved in sustaining a general demurrer cannot avail for a reversal.—Ryall v. Allen, 143 Ala. 222, 38 South. 851. Appellee’s complaint was that the defendant, a veterinary surgeon, had so negligently or unskillfully treated his horse for a spavin that the horse died as a result. The complaint was in tort. There seems little doubt [243] on the evidence that the mere application of the cautery to the spavin did not account for the death of the animal a few hours thereafter, hut that its death resulted from a rupture of the diaphram caused either by violently throwing the horse to the ground, preparatory to the application of the treatment, or by its struggles to free itself from the bonds which held its feet together during the operation. Appellant thinks that, such being the case, plaintiff could not recover as for negligent or unskillful treatment. But to bind and throw the animal was a part of the treatment undertaken on the advice and under the direction of defendant, and is necessarily resorted to in cases where the animal is unruly or’violent, as the jury might have inferred was the case here. We do not doubt that the complaint authorized a recovery on proof of negligence or unskillfulness in causing the animal to be thrown so as to produce its death in a way which ought to have been anticipated as a probable result. Such result does sometimes follow, it seems, where there has been no lack of care and skill. But in this case there was evidence which may well have afforded inference that the place selected for throwing the horse — being on the side of a hill, whereas a level spot was available — was so unsuited to the purpose as to cause the horse to be thrown with unusual and unnecessary violence, thereby causing its injury and death. Whether, therefore, the death of the animal resulted from negligence, or was an accident, inevitable because not to be foreseen in the exercise of due care and skill, was a question which the court properly submitted to the decision of the jury. J. M. Worthy, testifying as a witness for the plaintiff, deposed that he had often seen horses hobbled and thrown in a way to prevent injury, that his observation covered 12 or 13 years in Texas and Alabama, and that [244] he knew how to hobble and throw a horse so as not to Injure it. He had seen veterinarians hobble and throw' horses, and himself had done so many times. On this qualification this witness was allowed to give his opinion as to the proper way in which to hobble and throw a horse. We have held that throwing the horse was a part of the operation of firing the spavin. But it was not necessary that this witness should qualify as a veterinary surgeon before being permitted to state his opinion as to the proper method of hobbling and throwing horses in general. A< witness may have expert knowledge of some of the more ordinary affairs of life. The opinions of mechanics and artisans are received as evidence when they have gained by experience an acquaintance with the subject not common to others. The opinions of those skilled in agriculture are received as to proper modes of cultivation and cognate problems. It is a common practice to allow stock dealers and graziers to testify as experts concerning the management of stock and matters peculiarly within their knowledge. —Jones on Ev. §§ 380, 381. The opinion of this witness as to the proper way in which to perform the mechanical part of the operation was properly received; its weight being left to the jury. But the witness was allowed to go further. He was allowed, in effect, to testify that the operation involved in the case on trial was negligently performed. This was error. It was not for the witness to usurp the province of the jury by drawing that conclusion of fact upon which the issue of the case depended.—L. & N. v. Landers, 135 Ala. 504, 33 South. 482. For this error the judgment must be reversed. Reversed and remanded. Dowdell, C. J., and Anderson and McClellan, JJ., concur.