Merrill v. Dockery ( 1920 )

Ethridge, J.,

delivered the opinion of the court.

Miss Merrill sued Miss Dockery for damages occasioned her by Miss Dockery’s hogs trespassing upon her property and destroying, her shrubbery, Lespedeza patch, and other property. When the suit was filed a writ of seizure was issued and placed in dhe hands of the sheriff, commanding him to seize the property. The writ commanded the seizure of all hogs owned by Miss Dockery upon the Dana place as follows: Four black and white sows, one black and white male, one black and white barrow, fourteen more or less, black and white shoats. The sheriff returned :

“I have this day executed the within summons and writ by delivering to Miss Dockery, the defendant, a true copy of this writ, in person, and further by taking into my possession the following described hogs' owned and claimed by the defendant, and found in her .possession on the Dana place, to wit: Four black and white sows; one black and white male hog; one black and white barrow. I saw 11 black and white shoats on or near the line of the Dana place and the Fatherland plantation which Miss Dockery said did not belong to her and which I did not seize. The said defendant stated that the swine seized were all the swine owned by her. I left the sows and hogs in the possession of Miss Octavia Dockery for me, subject to the levy of said writ.”

Miss Dockery testified that the hogs seized were not her hogs, and the plaintiff testified that the hogs seized did the damage, at least in connection with some other hogs all running together, and that the defendant had on former occasions claimed ownership of the hogs. There was testimony for the plaintiff that the particular hogs recognized by the plaintiff as Miss Dockery’s hogs did specific actual damage involved in the amount sued on.

The plaintiff obtained one instruction which reads as follows:

“The court instructs the jury for the plaintiff that if you believe from thé evidence in this case that damage was done to the property of the plaintiff as alleged in the petition in this case, and the same was done by hogs or pigs belonging to the defendant, then you should find for the plaintiff in such amount as you may believe from the evidence she may he entitled to, not exceeding the amount sued for.”

The defendant’s instruction No. 1 reads as follows:

“The court instructs the jury for the defendant that before they can find for plaintiff they must believe by a preponderance'of the evidence that defendant’s hogs did all the damage, if any, and if you believe from the evidence that Miss Dockery’s hogs did not do any damage, then you shall find for the defendant.”

And the giving of this instruction is assigned for error. We think the instruction is erroneous when applied to the facts in this case. The evidence shows that some of the defendant’s hogs did the damage, or a part of it, and while on some occasions all of the bunch of hogs were together., still on other occasions only a part of the hogs described by the witnesses and as described in the sheriff’s return did parts of the damage. If the defendant’s hogs were trespassing upon property of the plaintiff, the plaintiff would be entitled to some damage for the trespass, and such actual damages as the proof would show the hogs did. We think under the evidence in this case the instruction ought not to have been given in the form it was.

Instruction No. 2 for the defendant reads as follows:

“The court instructs the jury that if the evidence of the alleged damage is indefinite, then they shall, find for the defendant.”

While the rule is that damage tó be recoverable must be shown by evidence which is certain or definite, still, as applied to this case, there is no trouble with the evidence so far as the damage is concerned. The items of damage are distinctly testified to. It is not a ease where the proof is so uncertain that two reasonable conclusions can be drawn from it. The only uncertainty at all in the present case is not as to the damage done, but as to the hogs that did it, and that is definite according to witnesses for the plaintiff.

For the errors indicated, the judgment will be reversed, and the cause remanded.

Reversed and remanded.