Spiegel v. Straw

Fellows, J. The parties to this litigation are the same as in case No. 27606, handed down herewith. Spiegel v. Straw, ante, 576 (163 N. W. 2). This case, like that one, is trover for beasts distrained, and involves five head of cattle, The circumstances of shutting the cattle up is in conflict; the plaintiff claims they were upon the highway opposite defendant’s land when taken by defendant’s wife, but claims they were not running at large, while she claimed they were on the premises owned by her husband. The court submitted the question to the jury as to whether the cattle were running at large, and charged that if they were, or were trespassing on defendant’s premises he was entitled to a verdict; otherwise, the plaintiff was entitled to recover their value. The jury found for the defendant, and plaintiff brings the case here. The defendant was the owner and occupant of the land opposite the highway where the cattle were, if they were in the highway as claimed by plaintiff. If they were running at large, defendant had a right to distrain them. Section 5608, 2 Comp. Laws (2 Comp. Laws 1915, § 7287). If defendant had the right to distrain them, he could do so, either by his own act or [584] that of his duly authorized agent. It was, therefore, competent for him to prove that his wife, in shutting up the cattle in his absence, did so pursuant to his directions and instructions, and, having proved this without dispute, the interesting question of whether a wife occupying land with her husband is an occupant of the land, within the meaning of the statute above cited, becomes unimportant. Within 12 hours defendant ratified the acts of his wife by causing written notice of the distraint to be served on the plaintiff. The plaintiff, having had notice that defendant had distrained his cattle, should have brought the special action of replevin under the statute, if he desired to test the regularity of the proceedings. He cannot do so in an action of trover. It will be unnecessary for us to repeat what we have already said on this subject in the other case. Error is assigned on the admission of testimony showing what the cattle sold for. If the jury had reached the question of damages, this would be some evidence of value; but, that question not having been reached by the jury, we cannot understand how plaintiff can claim to have been injured by this evidence. The defendant, over plaintiff’s objection, gave evidence of the proceedings taken by him for the purpose of showing regularity thereof. As the court in his charge told the jury repeatedly that the only question for them to determine was whether the cattle were running at large, and did not submit the question of the regularity or want of regularity of the proceedings to the jury, the error, if any, was without prejudice. It is insisted that the trial court gave undue prominence to the testimony of defendant’s wife, and did not call attention to the fact that the testimony of plaintiff’s hired man, who disputed her, was corroborated by other witnesses. It is true that in one part [585] of his charge the court did state the claim of defendant as testified to by Mrs. Straw and the claim of plaintiff as testified to by the hired man, and said, “There is the testimony of the two.” He later in his charge again mentioned the conflict between these two witnesses, and called attention to the fact that testimony had been given by both parties tending to corroborate the testimony of each. The charge must be considered in its entirety, and when so considered this charge is not open to the objection here urged. It is contended by plaintiff that stock cannot be considered as running at large when they have escaped their owner’s inclosure, if the fence was a proper one, until the owner has knowledge that they are in the highway, and the court was requested to so charge. This he refused to do, and properly so. If the cattle were running at large in the highway, they were subject to distraint, and this does not depend upon knowledge or negligence on the part of the owner. No error appearing on this record to the prejudice of the plaintiff, and we have examined it with care, the judgment is affirmed, with costs to the defendant. Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.