Speakman v. Roberts

Speakman v. Roberts. Action to recover Damages for the Killing of an Ox. 1. Action to recover damages for the hilling of an ox; charge to the jury. — In an action to recover damages “for the wrongful or unlawful or malicious or intentional or forcible killing” of an ox, where the evidence for the plaintiff tends to show that the defendant assisted in. driving the ox referred to in the complaint into a swollen stream, wherein the ox was drowned, a charge asserts a correct proposition and is properly given at the request of the defendant which instructs the jury that “before you can render a verdict in favor of the plaintiff in this case you must find from the evidence that the steer came to his death by the violence of” defendant. Appeal from tlie Circuit Court of Morgan. Tried before the Hon. H. -0. Seeake. , This was an action brought by the appellant, W. I. Speakman, against James Roberts. The complaint as amended contained the following count: “A. The plaintiff further claims of the defendant the sum of fifty dollars as damages for the wrongful or unlawful or malicious, or intentional, or forcible, killing of one brindle steer, the property of plaintiff, in the month of June, 1893, on or about the ninth day of said month.” The defendant pleaded the general issue. On the trial of the case plaintiff introduced evidence tending to show that the defendant, together with other persons, drove the steer which is described in the complaint, and which belonged to the plaintiff, into a creek which was swollen by a freshet, and that the steer was drowned. There was evidence introduced by the defendant tending to show that he was in no way connected with the killing of the steer. There were manv charges requested by the plaintiff which the court refused to give, and to the refusal to give each, of which the plaintiff separately excepted. But it is unnecessary, under the opinion on the present appeal, to set those charges out in detail. Among the charges given at the request of the defendant, and to the giving of each of which the plaintiff separately excepted, was the following: (9.) “Before you can render a verdict in favor of the plaintiff in this case you must find from the evidence that the steer came to his death by the violence of Roberts.” There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved. Arthur L. Brown and E. W. Godbex,, for .appellant. W. W. Callahan'and W. T. Worti-i, contra. [MAJORITY — TYSON, J.] TYSON, J. It will serve no purpose to consider in detail the numerous charges refused to the plaintiff. Every one of them were vicious. They were either confusing, -argumentative, misleading, singled out a particular fact, or misstated the law. Of the numerous charges given at the request of defendant, it is only necessary to make reference to charge 9. All the others were so- obviously correct that no comment on them is needed. It is contended, however, that charge 9 was improper asi count A of the amended complaint sought a recovery for the wrongful or unlawful killing of the steer. In supj>ort of this contention it is said that defendant was- liable, if he “tolled” or led or coaxed the steer into the swollen stream or i-f he drove the steer into the stream by hallooing at it or by merely walking behind it or -by expedients adopted to merely frighten it so that it ran into the water where it perished. If the steer came to its death 'by being drowned, by reason of having gone into the stream on account of any one of these acts or means employed to get it into the water, it is urged, that the killing was wrongful or unlawful, but without violence on the defendant’s part. Assuming that defendant employed any one or all of these means t-o get the steer into the stream, his liability for its death would result from tlie violence of the water "which -destroyed it; and not from merely inducing it to go into the water. His liability beihg predicated solely upon the action of the water which drowned the steer, "which necessarily involved violence, the water may, accurately speaking, be said to have been the agency employed by him to kill the steer. The -charge was proper. Affirmed.