Selleck v. Selleck , 19 Conn. 501 ( 1849 )

Church, Ch. J.

This case involves a principle of some practical importance to agriculturists, and this alone gives it an interest worthy of our consideration.

Our only difficulty in deciding it, has been to understand certainly, what the county court has-instructed the jury to be the law of the case. From a careful examination of the charge, we suppose the doctrine of it to be, and that the jury must so have understood, that by the 6th section of the revised “Act relating to sheep,” the owner of a ram is bound to exercise the same, or about the same, care in restraining it from going at large, as the law requires from common carriers and inn-keepers, in the custody of goods committed to their keeping; or that the fact that the animal is found at large, is so nearly conclusive proof of culpable negligence, or actual assent, that it can only be explained, by proving, that it was occasioned, by an act of Providence, the act of the opposite party, or the action of some power beyond the controul of the owner ; and that a prudent and reasonable care, exercised, by keeping up lawful and sufficient fences, and other proper and usual restraints suited to the nature and propensities of the animals, will not excuse.

To this view of the responsibility of owners we cannot assent. Neither the nature of the case, the principles of the common law, nor the language of the statute, will justify it.

The statute referred to, provides, “ That if the owner of any ram shall suffer him to go at large, or out of his enclosure, &c., such owner shall forfeit ten dollars to the person who shall find and take up said ram.” This law is penal, and cannot be extended, by a latitude of construction, beyond the obvious import of its language ; there being nothing in the nature of its subject matter demanding a more extensive application of it. If the owner suffers the animal to go at large, or out of his enclosure, he incurs the penalty; otherwise, not. To suffer an act to be done, by a person who can prevent it, is to permit or consent to it — to approve of it, and not to hinder it. It implies a willingness of the mind. Such is not only the popular, but the proper meaning of the language of the statute; and so the legislature understood it. But the charge of the county court would subject the owner of the ram to the penalties of this law, who had used all the care and the prudence usual with the most careful men, and all in his power, to restrain him ; and who, by his care and conduct, had furnished the most satisfactory evidence that the animal had escaped contrary to his will.

Similar language is found in other statutes, and where its meaning cannot be considered as doubtful, and has received, in one instance at least, a judicial construction. Thus, by section 102 of the statute “ Concerning crimes and punishments,” a penalty is inflicted upon a taverner, who shall suffer his guests to use certain games in his house. And by sections 3 and 4 of the statute relating to taverns, a penalty is incurred, by a tavern-keeper, who shall suffer minors and others to sit drinking in their houses. And section 6 of the statute relating to the sabbath, subjects to fine, the proprietor of any coach, who shall suffer or allow any person to travel in it on the Lord’s day, except from necessity. A case under this provision of the law, has been considered, by this court. Myers v. The State, 1 Conn. R. 502. It was there decided, if the coach of the defendant was hired, by a trav-eller, to be used on Sunday, for a lawful purpose ; if without the consent of the owner, it was in fact used for an unnecessary purpose; that no penalty was incurred. And the court very properly said, “ unless this construction be adopted, a man may be convicted of a crime, when he had no intent to violate the law.”

It may be difficult to fix, with precision, the exact degree of diligence necessary to be observed under this provision of the law. It must be regulated somewhat, by the propensities of these animals to escape, and by the common usages of diligent farmers in restraining them. That strict care was intended to be enforced, by the legislature, we infer from the obvious purpose of the law, and from the fact that a penalty is annexed for a violation of it; but not such a degree of care as amounts to an obligation on the part of the owner of these sheep to restrain them, at all events, unless prevented by the intervention of some uncontroulable cause; nor any greater care than is usually taken, by careful and prudent farmers, in like cases. And if there be any want of such care, either in restraining or reclaiming such sheep when at large, this would afford proof enough, that they were suffered to run at large, within the meaning of the law. And to this effect the jury should have been instructed; and not to have been told, or left reasonably to infer, that even the highest diligence — a care excluding all fault — was not sufficient to save from the penally of this statute.

The court did say, to be sure, that “ the jury should find for the defendant, if they should be of opinion that said ram was not running at large, by his the defendant's sufferance.” And this is claimed as a strong charge in favour of the defendant ! But this was no instruction to the jury at all. They could foim no opinion whether the ram was at large, by the defendant’s sufferance, until they knew what, in point of law, would constitute such sufferance; or what degree of care the law required ; or what amount of negligence it punished.

We are of opinion, that in the judgment of the county-court there is manifest error. ⅜

Hinman, J., was of the same opinion. Stgrrs and Ellsworth, Js., concurred in the genera! principles, laid down by the Chief Justice, but dissented from the view taken by him of the charge. Waite, J. was not present.

Judgment to be reversed.