King v. Ruth

Smith, G. J., delivered the opinion of the court. The appellee sued the appellant in the court of a justice of the peace to recover damages for the value of corn belonging to him and alleged to have been destroyed by the appellant’s hogs, and recovered in that court, and also in the circuit court to which the case was appealed. The appellee’s complaint is that the appellant’s hogs entered his land and destroyed, corn belonging to him growing thereon. The evidence does not disclose that the land was inclosed by a lawful fence, section 2222, Code of 1906, Hemingway’s Code, section 4541, or is in a stock law district, section 2234, Code of 1906, Hemingway’s Code, section 4553, and the case seems to have been tried in the court below on the theory, in which counsel for each of the parties seem to have participated, that such proof was unnecessary, for which reason, since the judgment must be reversed independently of any error that may have been committed in this connection, we will pretermit any consideration thereof. The evidence discloses that the corn remained ungathered in the field until late in the spring, during which time a part of it was knocked down and destroyed by [381] hogs. On several occasions hogs belonging to the appellant were seen in the field, and, on at least one occasion, were driven therefrom by the appellee; but it is manifest from the evidence that the damage was inflicted not alone by the hogs of the appellant, but that hogs belonging to other of the appellee’s neighbors participated therein. While hogs other than those of the appellant were seen in the field only once, such hogs were shown to have ranged in the neighborhood thereof, to have had unobstructed access thereto, and there were numerous hog tracks entering'; and leaving the field at places different from that at which the field would have been entered by the hogs of the appellant. The case presented by the evidence, therefore, is one of separate and distinct trespasses committed by the hogs of different owners, each of whom can be held liable only for the damage committed by his hogs. Chapin on Torts, 232; 3 C. J. 145; 1 R. C. L. 1106 ; 1 Sutherland on Damages, 368; 2 Cooley on Torts, 704. The court below recognized this rule by instructing the jury in accordance therewith; but the evidence contains nothing whatever that could have been of the slightest assistance to the jury in arriving at the amount of the damage that was inflicted by the appellant’s hogs. Consequently the appellee, assuming for the sake of the argument that he was not barred from recovering because of his failure to prove that the field was inclosed by a lawful fence, or was within a stock law district, should have been permitted to recover nominal damages only. In Montgomery v. Handy, 62 Miss. 16, a recovery was allowed against one for the commission of a trespass by his and the cattle of another; but, as was there pointed' out, he had permitted the cattle to enter and mingle with his on his own land and to go therefrom onto his neighbor’s land, for which reason he was held to be pro hac vice, the owner of all of the cattle. This record presents no such case. Reversed and remanded.