Smith v. Causey

28 Ala. 655

• Court: Supreme Court of Alabama
• Decided: January 15, 1856
• Status: Published

Opinion

WALKER, J.

An issue was made up between the parties. The plaintiff filed a declaration in trespass on the case, for injury done to his hogs by the minor children, servants and employees of the defendant, while engaged for the defendant in the business of driving hogs and other stock out of defendant’s field. To this declaration the defendant pleaded not guilty, and upon that plea the trial was had. The rulings of the court, as shown in the bill of exceptions, are the only matters assigned for error.

The court permitted the plaintiff to prove a declaration of the defendant, “ that plaintiff’s hogs were in the habit of running in his field, bnt that they should not do it any more, —that he would kill them.” So much of this testimony as conduced to show that plaintiff’s hogs “ were in the habit of running in tho defendant’s field”, and that “ they should not do it any more”, was admissible evidence, because it tended, though remotely, to show that the hogs which the servants of defendant injured in expelling them from the field were the property of plaintiff. Under the issue made up, the defendant’s threats to kill the hogs were not competent evidence. It was testimony conducing to show, that the defendant killed the hogs. Under the declaration, plaintiff had no right to prove any other damages, than those resulting from the carelessness and negligence of the defendant’s children and servants, in the business of driving and chasing hogs from the field. If the defendant injured the hogs himself, or his servants did so by his command, trespass would have been • the remedy; and even if case were the remedy, there is no averment in the declaration which would justify the admission of such proof. — 1 Chitty on Pleading, 131; Causey v. Smith, 22 Ala. 569. ■

The court, however, did not err in overruling the defendant’s objection to the testimony above set forth, because the objection was a general one to' the whole of it, while a part of it was legal. — Gibson v. Hatchett & Brother, 24 Ala. 201.

The defendant excepted to proof tending to show an injury done by him in person to the plaintiff’s hogs. This proof was clearly outside of tho issue before the jury, and inappropriate to the cause of action set forth in the plaintiff's declaration; and the court therefore erred in admitting it.

The gist of this action is, tho injury resulting 'from the carelessness and negligence of the defendant’s servants, while engaged in the employ and service of the defendant, that employ and service being the chasing and driving of hogs from the field of defendant; and it was not necessary, to sustain the action, that the particular act done in the performance of such duty was commanded by the defendant, or that the defendant’s dogs were vicious, and he knew it. The declaration alleges that the injury was done with defendant's dogs. Under such a declaration, plaintiff could not recover for injuries done by other dogs; but it would not follow, because a part of the injury was done by other dogs, that the plaintiff could not recover for the part of the injury done by defendant’s dogs. From these considerations it follows, that the court properly refused each one of the four charges asked by the defendant.

The court ei'red in its charge to the jury, that the ownership of the dogs was immaterial. The plaintiff averred that the dogs were the defendant’s; and, although this averment was unnecessary, yet, as it is descriptive of the tort complained of, it can not bo disregarded. The tort alleged is an injury done by the servants with defendant’s dogs.- To allow a recovery for an injury done with other dogs, would bo to set up by proof a cause of action different from that alleged, and of which the defendant had no notice. — 1 Chitty on Pleading, 392; 1 Greenleaf, 63, 64, 65; Causey v. Smith, 22 Ala. 569.

For the errors which we have pointed out, the cause must be reversed, and remanded.