Dorr v. Loucks

2 Mich. N.P. 182

• Court: Circuit Court of the 22nd Circuit of Michigan
• Decided: February 15, 1871
• Status: Published

Opinion

By the Court,

Higby, J

—This suit came into this Cofurt by appeal from a Justice of the Peace. Judgment below was for the plaintiff, and defendant appealeu.

The declaration was in trespass, and amongst other things alleged that the defendants, “ with force and arms, and with their dogs, and dogs-which they were keeping, did, contrary to the provisions of section'2, of an act of the Legislature of the State of Michigan, entitled, “ An act for the protection of sheep and other domestic animals,” approved March 28th, 1850, on the farm and premises of the plaintiff, situate in said town of Manchester, drove, chased and hurried the sheep of the said plaintiff, which were then and there in the possession of the plaintiff, depasturing, and being in and upon said farm and premises of the said plaintiff; and then and there with their dogs, and dogs which they were keeping, as aforesaid, killed a large number of said sheep, to wit: eleven sheep, of great value,” &c., and claiming judgment for double the amount of damages, as provided by said statute. Plea — general issue.

On the trial by jury evidence was given tending to show that two sheep were killed by the dogs, and some eight or nine so badly wounded that the plaintiff killed them, considering their lives useless, and that damage was done to the flock by driving and chasing the sheep, variously estimated from a trifling sum to $25 or $30.— The plaintiff recovered a verdict for $33 — the jury being instructed by the Court that they were not at liberty to take into consideration in estimating damages, the wounded sheep, as no such claim was made in the declaration. Applying the verdict to the evidence it was plain that the jury had arrived at the amount 'of their verdict by estimating the two sheep killed at $4 each, and $25 for the injury the flock by driving, chasing and hurrying.

The plaintiff s c .nsel now move for judgment for double tho amount of damages found by the jury and for costs. The defendant’s counsel oppose this and move for a new trial, on the ground that the statute in question doesnot apply to damages caused by driving chasing and hurrying sheep, but for killing, wounding and worrying only, and therefore the damages found by the jury were not of tho eh... cer that could be doubled. That a new trial ought to bo granted because the verdict in part was for damages not specified in the.statute; and being so, the plaintiff was not entitled to recover, there being no evidence tending to show that the dogs were wont to do such mischief. It was also insisted by defendant’s counsel that if judgment shovld be in the plaintiff’s favor, his costs, by tho express terms of said See. 1645, must be limited to $5.

I have stated somewhat fully the questions presented. The conclusions to which I have arrived are briefly as follows :

1. That tho words “ drove, chased and hurried,” as used in the declaration, are equivalent to, or at least fall within the meaning of the word worrying,” as used in the section referred to. There may be other means of worrying sheep, but I am satisfied that the word as used in the statute embraces all that is expressed by the words in the declaration. The declaration therefore cannot be said to embrace other or different causes of action than such as-were intended by the statute, and being so, it was not necessary to allege or prove that the dogs were wont to do such mischief.

2. The allegation in the declaration that the place where the injury was done was on the farm and premises of the plaintiff, and that the sheep were at the time in the possession of the plaintiff depasturing and being ou said farm, particularly in a pleading in Justice’s Court, is a sufficient averment that the place was , out of the enclosure of the defendants. The proof in the case tending to show that the injury was done out of the enclosure of the defendants, and within that of the plaintiff was clear and uncontradictcd, and after yerdict, if necessary, the plaintiff would be allowed to amend his declaration in that respect.

But I think the averment is sufficient as it is if it is necessary at all in this case. There is doubt whether the provision of this section of the statute in reference to “ travelling the highway or out of the enclosure of the owner” of the dogs does not apply to ■persons only.

The motion for a new trial must be overruled, and judgment must be entered in favor of tbe plaintiff for double the amount of damages found by the jury, and for costs.

A question is raised as to the amount of costs to which the plaintiff is entitled, based on the last clause of said sec. 1645, as follows : But in no. case shall tbe plaintiff recover more than 65 costs.”— Under this provision and without reference to subsequent legislation the amount of costs to which the plaintiff would be entitled is unquestionably limited to 65. The provision is general and unlimited, and applies to suits in the Circuit as well as in Justice’s Courts. — ■ By the express terms, however, of the acts of 1867, amended in 1869, [Laics of 1867, page 83, and 1869, page 32;) the costs there allowed to the prevailing party, are to be in addition to the fees of officers, disbursements and witnesses, as before allowed by law.

These acts make no exceptions, and apply as well to suits brought under said See. 1645, as to others. Costs in this case must bo limited to 65, with such additions thereto as the said act of 1869 allows to the prevailing party.