Minor v. Dockery , 125 Miss. 727 ( 1921 )

Anderson, J.,

delivered the opinion of the court.

Appellee, Miss Dockery, plaintiff in the court below, sued the appellant, Minor, defendant, in the circuit court of Adams county, for damages alleged to have been done the crops growing on her land by the cattle, horses, and mules belonging to the appellant, during the years 1917 and 1918, and recovered judgment, from which' appellant prosecutes this appeal. >

Appellee alleged in her declaration that the stock which damaged her crops were owned by, or under the control of, appellant. The evidence showed without conflict that they were the joint property of the mother of appellant,- Mrs. K. S. Minor, and her brother, Jas. Surget, and that the only interest-appellant had in them was as agent of his mother and uncle in the capacity of manager of the Fatherland place, owned by them, on which their stock which did the alleged damage were situated, and from which it is charged they strayed onto appellee’s place.

Appellant asked an instruction, which Avas refused by the court, directing the jury to return a verdict in his favor; and he requested, and the court refused, three other instructions, in which it was sought to direct the jury to return a verdict for appellant if they should find from the evidence that he did not oayii the animals alleged to have done the trespassing, but merely had control of them as the agent of the oAvner.

It was agreed and made part of the evidence in the case that Adams county was under what is known as the “Stock Law,” which is contained in chapter 50, Code of 1906 (chapter 102, Hemingway’s Code).

Under the provisions of this statute the domestic animals therein named are fenced against the crops, and the crops are cultivated uninclosed. And the oivners of trespassing stock are made absolutely liable for all damages done by such stock. Questions of due care and negligence in confining stock are eliminated. The statute (section 2222, Code of 1906; section 4541, HemingAvay’s Code), provides that, “Every owner of . . . shall be liable,” etc.

It is contended on behalf, of appellant that there is no liability on his part for the trespass, because the stock were owned by others, and he had control of them as their agent; that under the terms of the statute imposing absolute liability only the owners are made liable; and that regardless of the statute a mere agent would not be liable under the common law, and to sustain this contention Feltus v. Swan, 62 Miss. 415, is relied on. In that case the court held (and the principle is supported by the authorities, and in our judgment is sound) that an agent is liable to no one except his principal for damages resultihg from an omission or neglect of duty in respect to the business of the agency.

On the other hand, it is contended for the appellee that appellant, as agent in charge and control of the stock for his mother and uncle, Avas owner pro hoc vice; and under the authority of Montgomery v. Handy, 62 Miss. 16, was liable for the damages resulting from their trespassing. In our opinion this contention is unsound. The facts of that case, as stated by the court in its opinion, were as follows:

.¿‘Plaintiff and defendant, and also one Ayers, made their several crops under one fence within a common inclosnre. In the fall of the year, and before their crops were gathered, the defendant, Handy, without consultation with his neighbors, inclosed his own crop on three sides, leaving the fourth side to be completed by his immediate neighbor, Ayres, who already had a very insufficient fence between the land of himself and that of Ayres. Upon his own land Handy’s cattle were already located and he permitted those of his brother also to be driven thereon. Both his own and his brother’s cattle readily passed over the insufficient fence into the land of Ayres, and thence, of course, into that of plaintiff, Montgomery, and greatly damaged her crop.”

On this question the court said: “He was equally responsible for damage inflicted by the stock of his brother, which by permission had been mingled with his own. It is true that the statute speaks of the 'owner’ only as being-responsible, and it is true also that penal statutes are to be strictly construed. But that the defendant was liable for the damage inflicted by all the stock voluntarily mingled with his own seems too plain for argument. If he was not, he would have been equally acquitted for damage done by a hired animal, though the hiring was for the whole year, since in either case it might have been argued that he was not the ‘owner’ of the animal. In either case he was the ‘owner’ pro hac vice, and must be so treated.”

Under the facts of that case it will be seen that the defendant became a bailee of his brother’s cattle by permitting them to be driven into his inclosure and mingled with his; and that is what the court held. A bailee is the owner pro hac vice of the subject of bailment. An owner pro hac vice has some interest or title in the property. As a bailee, he would be such an owner. But a mere agent, in charge of personal property for his principal, is not the owner in any such sense.

It follows from these views that the court below should have given the peremptory instruction requested on behalf of appellant and refused by the court.

Reversed and remanded.