Bearinger v. O'Hare ( 1868 )

Wright, J.

Distress: of cattle damage feasant by agent or servant. — An opinion, after a brief and manifestly hurried argument, was filed in this case at the last December Term, affirming the judgment of the court below. The parties having been reheard upon appellant’s application, we have been led to re-examine the record, and brought to the conclusion that the court erred in excluding the offered testimony.

For the trespass referred to in the statement, the party injured might recover damages in an action against the owner of the beasts, or distrain the beasts. Rev. § 1548. It is conceded that no one other than the party injured could recover the damages done by such trespassing animals; that is to say, the servant could not recover in his own name the master’s damages, the tenant the landlord’s, nor the landlord the tenant’s.

In, this ease the party (defendant) is not seeking to recover damages, but seeking to justify the distraint. Plaintiff brings replevin, and, if defendant properly held the property, then the action must necessarily fail. The justification, however, would not be in the name of the agent, but in the name of and for the principal. And just here, was the error of the former opinion. Following too closely the rule of the common law, that the language of the pleading should be taken most strongly against the party pleading, we held that defendant undertook to justify the distraint in her own name. Whereas, adopting, as we should, the rule, that the allegations of a pleading are to be liberally construed, with a view to substantive justice (Revision, § 2951), the proper view of the answer is, that defendant justified as the servant of the tenants or the parties farming the premises. The claim is not that as lessor she had a right to distrain for an injury to the lessee’s crops; but like any other third person, just as though she had no connection with the lands, she claims as the servant of the tenants, or those whose crops are injured, for them, at their instance, and by their directions, to hold the cattle so distrained. The plaintiff, instead of bringing his action, as he might, against the principal, seeks a recovery against the bailee. If the distraint was justifiable, then the servant or agent thus holding for the principal, or master, would be as much protected as the party at whose instance or by whose order she was acting. This proposition is not disputed, nor does it need authorities in its support. The meaning of the pleader being settled, there remains no difficulty.

We remark, in conclusion, that, to entitle defendant to this defense, it was not necessary to make the tenants parties to the action. She is defending, not seeking affirmative relief. What is said about damages to the crops of those at whose instance and for whom she distrained, is not for recovering the same, but to show there had been an injury, and hence the right to distrain. Not only so, but if she made such claim, it could not affect the right to the possession, nor make the holding wrongful. Whether the fences around the premises were or were not sufficient, is a question not in the ease as it comes before us. The action of the court in rejecting the evidence offered by defendant, effectually cut off all further inquiry. As we have seen that in this there was error, the judgment is reversed, and the cause remanded for trial de novo.

Reversed.