Opinion
No. 28739.
June 9, 1930.
1. ANIMALS. Open gate was no defense to action for damages, where bull, running at large on range, gored mule to death ( Laws 1926, chapter 263, section 3).
The bull in question was allowed to run at large on the range in Wayne county, and Laws 1926, chapter 263, section 3, prohibits owners of animals of this kind from allowing them to run at large on public range in Wayne county.
2. ANIMALS.
That bull was gentle animal without vicious propensities was no defense to action for damages inflicted by bull trespassing upon another's property (Laws 1926, chapter 263, section 3).
3. ANIMALS.
Owner or one in control of bull, knowingly permitting bull to run at large and trespass upon another's land, was liable for damages caused (Laws 1926, chapter 263, section 3).
APPEAL from circuit court of Wayne county. HON. J.D. FATHEREE, Judge.
W.M. Hutto, of Waynesboro, for appellant.
Any person who permits his cattle or other live stock to run at large on the open range and permits them to do damage to personal property of others is liable to the party so injured or damaged for whatever damages that may have occurred by reason thereof.
Section 3, chapter 263, Laws of 1926.
The question of negligence by appellant in leaving gate open does not arise as the animal of appellees was a trespasser.
Chapter 263, Laws of 1926.
Frank Clark, of Waynesboro, for appellee.
A mere agent in control of the cattle, horses, and mules, belonging to his principal is not liable to damages done by such animals in trespassing upon the crops of another under the principle that an agent is liable to none except his principal for damages resulting from an omission or neglect of duty in respect to the business of the agency.
Minor v. Dockery, 88 So. 321, 125 Miss. 727.
The bull must have had vicious propensities at and prior to the damages in question in order for the appellee to be liable.
Stewart v. Gwinn, 101 So. 689, 136 Miss. 806.
The gate of appellant was left open where his cattle and mules could go in and out on the open range as well as the bull in question, and it was his negligence that caused the injury and the appellee could not be charged with any wrong.
Mozingo, the appellant, sued the appellees, Cooley and wife, in a justice of the peace court for damages occasioned, as alleged, by a bull goring to death a mule belonging to the appellant. From that judgment there was an appeal prosecuted to the circuit court, and from a judgment there in favor of the appellees appeal is prosecuted here.
It was shown that the bull in question was allowed to run at large on the range in Wayne county, entered the lot of the appellant, and promptly gored to death a mule belonging to appellant; the mule being in the private lot of its owner.
It was also shown in evidence that the bull had a good reputation; had never been vicious, and bore the reputation of being a quiet, gentle animal, without vicious propensities prior to this occasion.
There is evidence tending to show that the bull went from the public range into the private lot of the appellant where the mule was kept because of a gate being left open.
The court submitted the case to a jury on the theory that the owner of the mule was guilty of negligence in leaving the gate open or permitting it to be open, which negligence contributed to the owner's damage. It was further submitted to the jury that the appellant could not recover unless the animal was of vicious propensities, and the question of ownership of the bull was also submitted to the jury.
On the issue that the appellant was guilty of contributory negligence in permitting the gate to be left open, the question was not properly submitted to the jury. Chapter 263, section 3, Laws 1926, prohibits owners of animals of this kind from allowing them to run at large on the public range in Wayne county. Therefore, the bull was a trespasser wherever he did damage in thus being allowed to run at large, and the open gate was no defense to the action.
What we have said is also true relative to the question that the bull was a good, kind, gentle animal without vicious propensities. This does not constitute a defense to an action for damages where the animal inflicts damage while trespassing upon the property of another. See 3 Corpus Juris, section 318, p. 89, which, quoted in part, is as follows:
"But the owner of a domestic animal is not liable, in the absence of statutory provision, unless it is affirmatively shown either (1) that the animal was vicious, and that the owner or keeper had knowledge of the fact, or (2) that the injury was committed while the animal was trespassing on the lands of another, or (3) that the injury was attributable to some other neglect on his part, in which cases proof of scienter is unnecessary."
In this case the court should have peremptorily instructed the jury that the owner of such an animal, or one in control thereof, who permitted, knowingly, the animal to run at large and trespass upon the land of another to such other's damage, is liable for the damages occasioned by the wrongful acts of the animal; there being an issue of fact only as to whether Cooley owned or was in control of the bull.
Reversed and remanded.