Opinion
7 Div. 238.
February 2, 1937.
Appeal from De Kalb County Court; L. L. Crawford, Judge.
Action for trespass to land by I. J. Bohannon against Will Prestwood. From a judgment for plaintiff, defendant appeals.
Affirmed.
The bill of exceptions shows that in argument to the jury, the attorney for plaintiff made this statement: "Mr. Prestwood ought to be ashamed of himself. He let his stock run outside on his neighbors and eat up their fruit trees and flowers, and when he is sued he hides behind his boy." Defendant's objection to this argument was overruled, and defendant reserved an exception.
Scott Dawson, of Fort Payne, for appellant.
Damage being done by animals of defendant and animals of another, in the absence of any evidence from which the jury could arrive at the value of the damage done by the defendant's animals, the affirmative charge should have been given for the defendant. Priest v. Nichols, 116 Mass. 401.
J. A. Johnson, of Fort Payne, for appellee.
There being no motion for a new trial, the case is not subject to review on the question of excessive damages. Gibson v. Montgomery, ante, p. 126, 166 So. 726; Richards v. Williams, 231 Ala. 450, 165 So. 820. Appellant has burden of showing error and probable prejudice as a result thereof. Alaga Coach Line v. McCarroll, 227 Ala. 686, 151 So. 834, 92 A.L.R. 470; Lackey v. Thomas, 26 Ala. App. 65, 153 So. 287.
The injury complained of was done to plaintiff's fruit trees, shrubs, and potatoes by the defendant's hogs. It is declared by Mr. Chitty: "As the propensity of animals mansuetæ naturæ, as cows and sheep, to rove, is notorious, the owner is bound at all events to confine them on his own land; and if they escape, and commit a trespass on the land of another, unless through the defect of fences which the latter ought to repair, the owner is liable to an action for trespass, though he had no notice in fact of such propensity." 1 Chit. Plead. 82, 181. The foregoing is quoted with approval in Gresham v. Taylor, 51 Ala. 505.
The complaint in the instant case was grounded upon the above principles, and the evidence for the plaintiff tended to prove the cause of action. That being the case, the question became one of fact for the jury and, therefore, the court properly refused to give at the request of the defendant the general affirmative charge.
It is insisted by the defendant that the verdict rendered by the jury was excessive, but there is no motion for a new trial and no exception thereto appearing in this record. That being the case, there is nothing presented for review, there being evidence which if believed authorized a verdict for the plaintiff. Richards v. Williams, 231 Ala. 450, 165 So. 820.
The damage done to plaintiff's trees, shrubs, and potatoes was the result of the depredation of a flock of goats and a bunch of hogs. It is impossible to separate the damage done by the goats from that done by the hogs, but there is evidence tending to prove that the defendant in this case had the care and control of both the hogs and the goats jointly with his son, and when it appears that two persons are the joint keepers of animals doing damage by trespass, either or both are liable for the damages, 3 Corpus Juris, 145 (455) d.
The excerpt from the argument of the plaintiff's counsel does not in any way infringe the rule against unfair argument. The trial judge did not err in overruling defendant's objection thereto.
Other questions presented were without merit.
We find no error, and the judgment is affirmed.
Affirmed.