McCain v. White ( 1889 )

Woods, C. J.,

delivered the opinion of the court.

This was an action brought for the recovery of damages for injuries resulting from the shooting of appellant’s stock by the appellee. That the stock was shot while trespassing on the fenced grounds of appellee is undisputed; and that the premises of the parties to the suit were divided by a partition fence is likewise undisputed. Whether the portions of this partition fence belonging to the parties respectively were lawful fences and in good repair; whether the stock found its way into defendant’s close through McCain’s part of the partition fence, or in some other way, were points much disputed, and concerning which much evidence was taken. These were questions of fact to be determined by the jury, and the verdict has determined them adversely to appellant’s theory.

It is only necessary for us to consider the assignment of error which calls in question the charge given for the defendant by the court below. This charge substantially informed the jury that, if McCain and White were joint owners of a partition fence, each bound to keep in proper repair his part of the same, and that McCain had failed to so keep in repair his part of such partition fence, whereby his stock had broken through into White’s.premises, ■then plaintiff was not entitled to recover damages, even on proof of White having shot McCain’s stock.

The consideration of this instruction involves the construction of § 988, code of 1880, and especially the concluding clause of the last sentence. After providing for the payment of double damages for injuries done to trespassing stock by any person not having a lawful fence, and after providing for a settlement by reference to disinterested neighbors, we find this : “provided, the foregoing provisions shall not extend to any joint owner of a partition fence who has failed to make the proper repairs thereof, as against his co-owner, and sueh joint owner shall not be entitled to any damages for injury to his animals which have broken through such partition fence.” The italicised words first appear in the code of 1880, the antecedent portion of the section having been incorporated in our other codes in 1857 and 1871. These italicised words create a new rule of diligence in duty for joint owners of partition fences, and offer the strongest incentive to faithfulness of performance. The purpose of the legislature was doubtless to protect the provident and painstaking against the improvidence, and indifference, and thriftlessness of irresponsible joint-owners of partition fences. It by express terms deprives the indolent and improvident joint-owner of a partition fence of any damages — not double damages, nor any damages provided in that section, but any damages — for injuries done his stock by reason of their having broken through the partition fence because of his failure to keep his part in proper repair.

The statute seems incapable of any other interpretation, without wresting the words from their obvious meaning.

This construction of the statute is conclusive of the case.

Affirmed.