Opinion
4 Div. 894.
December 2, 1920.
Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.
R. C. Williams, of Dothan, for appellant.
Court erred in overruling plaintiff's objection to the question made the basis for the second assignment of error, as there was no special plea. 12 Ala. App. 655, 68 So. 555; section 5890, Code 1907. The court should have permitted the plaintiff to show an agreement between the parties with reference to the fence and keeping it up. Section 5890, Code 1907; 48 So. 812; 174 Ala. 170, 57 So. 46; 193 Ala. 443, 69 So. 117. Counsel discuss the other assignments of error, and cite the above authorities in support thereof.
Lee Tompkins, of Dothan, for appellee.
The evidence and the record fully justified the finding of the jury. Sections 5890, 5889, Code 1907. Appellant cannot complain of the verdict. 29 Ala. 174; 38 Ala. 188; 98 Ala. 657, 13 So. 690; (Miss.) 48 So. 412; 174 Ala. 170, 57 So. 46.
Plaintiff (appellant) sued defendant in statutory detinue for one cow. The parties lived in a stock-law district, and defendant had taken up plaintiff's cow, proceeding, as he contended, according to the statute (Code, § 5890); but plaintiff, without awaiting procedure under the statute, forthwith brought this action. Questions of fact litigated were whether plaintiff had — to quote the statute — "knowingly, voluntarily, negligently, or willfully" permitted his cow to go at large upon the premises of defendant, and whether defendant had, within 24 hours after taking up the cow, personally notified the owner, his next-door neighbor.
The first assignment of error has no merit. Plaintiff's statement to the court as to what he expected the answer to be disclosed the fact that he expected an answer not responsive to the question on which the exception was reserved; but, of course, the court could not rule on the assumption that the witness would so answer. The statement of the brief is that the answer would have tended to show that defendant had taken up the cow and withheld her from her owner; but plaintiff's ownership — except as affected by defendant's proceeding under the stock law — was freely admitted by defendant, nor was it necessary to prove defendant's possession, for the plea of the general issue admitted that. Acts 1911, p. 33.
As for any objection taken against the question, or series of questions, made the subject of the second assignment, it was competent for defendant to show, as the answer did tend to do, that he was away from home at the time when the cow was taken up, but that his wife in his absence, took up the cow on his premises for him. No special plea was necessary. Pinckard v. Bramlett, 165 Ala. 327, 51 So. 557.
The question concerning what had passed between plaintiff and defendant on an occasion prior to the origin of the controversy about the cow could only have tended to discredit defendant by showing the state of his feeling toward plaintiff; but there was no error in overruling the question, for defendant had already stated as a witness that for a year or more there had been bad feeling between them, and to have gone into particulars, as the question proposed to do, would have unduly consumed the time of the court and distracted the jury's attention from the issue joined between the parties.
Section 5889 of the Code of 1907 is not a criminal statute. It gives the owner of premises within any stock-law district a lien upon stock for any damage done to crops, shade or fruit trees, or ornamental shrubs, if the owner has knowingly, voluntarily, negligently, or willfully permitted his stock to go at large upon the premises of another, and provides a civil remedy. But if coterminous landowners enter into an agreement by which each of them undertakes to keep designated parts of a partition fence in repair, and one of them fails to perform his part of the agreement, whereby his neighbor's stock stray upon its premises, as plaintiff proposed to show was the case between himself and defendant, we apprehend it cannot be justly said that the owner of the stock has either negligently or willfully permitted his stock to go at large upon the premises of his neighbor. It is suggested that parties may not by their agreements modify the criminal law, and it appears that the act of September 29, 1903 — section 14, p. 437, Acts 1903 — provided that "the owner, or any person having the control of any stock, who shall unlawfully permit such stock to go upon the lands of another, for each willful violation shall be guilty," etc., leaving "unlawful" to be defined, by reference to section 9 of the act, codified in section 5889 of the Code, as done "knowingly, voluntarily, negligently, or willfully." But in the Code, now of force, the criminal act is defined as "knowingly [to] permit such stock to go upon the lands of another within a stock-law district, without the consent of the owner of such lands." Code, § 7813. We think the landowner who in good faith relies upon a contract with his coterminous owner of the sort noted above does not violate the statute, and hence that defendant's suggestion affords no adequate answer to the argument for error on the fifth assignment. The trial court in some of its rulings on testimony did not give effect to this interpretation of the statute with result that reversible error was committed.
There was no error in the court's overruling plaintiff's motion to exclude all that defendant had said on redirect examination about the cow getting out at times other than that on which she was taken up. Without deciding that this testimony was irrelevant, a sufficient answer to the error alleged is found in the fact that no objection appears to have been made when this evidence was being elicited. Plaintiff could not speculate.
What plaintiff said to the witness Barfield in Dothan (tenth assignment) was relevant and competent as shedding light on one issue controverted between the parties, viz. it tended to show that he had notice according to the statute of the fact that defendant had taken up his cow.
Verdict and judgment went for defendant. Plaintiff had given bond and was in possession of the animal in suit. The value of the animal and damages should have been assessed (Code, § 3781); but plaintiff cannot be heard to complain of the omission. It did him no harm.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and BROWN, JJ., concur.