Kerr v. O'Connor , 63 Pa. 341 ( 1870 )

The opinion of the court was delivered, July 7th 1870, by

Thompson, C. J. —

It must be admitted that the presentation of this case is very uninviting and unsatisfactory. Where the fault is we are not called upon to pronounce, but may hope it will be the last of the kind.

We have very often said that a failure on the part of a judge to reduce to writing his charge and answers to points, as required by Act of Assembly, is not assignable as error in the trial. Such failures the judge alone is answerable for, and not the suitor. Everything done may be all rightly and properly done on the trial of the cause, and yet the judge may neglect to file his charge in time. It would be something more than unreasonable to hold, that for this, a party entitled to maintain a judgment he has rightly obtained, shall be deprived of it without fault or error on the part of anybody, but by reason of something collateral to, and outside of, the case, and over which he had not a shadow of power to interfere. A moment’s thought would certainly save the trouble of assigning such matters for error. While we cannot correct such omissions on the part of judges, let it not be supposed we approve of them. So far as the assignments of error in this case relate to these matters, they are dismissed from further notice.

The defendants below, father and son, living quite near to each' other, owned two dogs, whether jointly or severally, does not appear in the testimony. These dogs, on a certain morning, together killed and wounded a number of the plaintiff’s sheep, and for this act of trespass the defendants were sued jointly, and they plead “not guilty” and “accord and satisfaction.”

On the trial the counsel for the defendants, amongst other things, propounded a point, that if the jury should find that the defendants were not joint owners of the dogs, the plaintiff could not recover. Also a point, that if the jury should find that one of the defendants owned one of the dogs and the other the other, the plaintiff could not recover against either. These points were distinctly and expressly affirmed by the court. The jury found against these hypotheses, viz., that the defendants were the several and not joint owners of the dogs. The points themselves contained negatives pregnant, upon which the jury doubtless founded their verdict. They found their ownership to be joint or common, and assessed the damages against them jointly. The plea was “ not guilty,” and although entered for them both, still it maybe regarded as the several plea of each, yet there was no severance in testimony. Indeed, the. defence turned on the question of the guilt of the dogs, and on another raised by the plea of “accord and satisfaction.” The jury were not to be expected to sever where the defence showed no severance. Neither of the defendants denied his ownership of the dogs so far as we can discover. But what of this ? The court charged just as the defendants requested on the point of joint'ownership, and no more need be said about it. /■ In my opinion the Act of the 14th of April 1851, is broad enough to permit suit against all the owners of several dogs, which ■n. together at one and the same time, kill and wound a flock of sheep. They are all answerable for the act of killing. No scienter need ■ be shown as to the disposition of the dogs. If dogs are kept by farmers they are kept on the terms of paying for the damage they . may do in worrying sheep. Each one is answerable for the whole damage done in which his dog is jointly engaged. f It would, indeed, seem to be rather in favor of the owner of a dog which has engage'd in killing sheep, that the owners of the dog’s confederates should be included in the same trespass. ^Under the statute, I think the action would lie without proof of joint ownership of dogs, where they have acted in concert, or perhaps, more properly \speaking, did the mischief together. Where it is done at several times, of course no such rule could exist. But the court did not go this far, and certainly there is nothing of which it ought to be complained of, by the plaintiffs in error on this point.

The ninth assignment of error and its specifications are all in contravention of the rules of this court regulating the assignments of error. I may remark, however, that there was nothing said by the learned judge, if I understand the charge, on the subject of the plea of'“accord and satisfaction,” which precluded either defendant from showing that he was not guilty of the trespass charged. He did say, that if the proof sustained the plea, it was not material whether the claim of the plaintiff was joint or several. This was a self-evident proposition. If the trespass had been compensated under an agreement of the parties, that would assuredly have ended all controversy, and then there would have remained no materiality in the question of several or joint liability. But the defendants complain that they were sued before the time had arrived for making satisfaction. If this were so, it at once disproves the plea, for that asserts both “accord” and “satisfaction.” Actual satisfaction is absolutely essential to sustain the plea. A promise to pay the damages done at a future day would, perhaps, not sustain it. Such a contract might be pleaded as a release of the original cause of action, or might avail as a defence on the trial, but it would not sustain the plea, of “ accord and satisfaction.” There is a satisfactory chapter on this subject in 1 Wilson’s Bac. Abr., p. 41; see also 3 Chitty’s Blackstone, 42, n.; Blackburn v. Ormsby, 5 Wright 97; Hearn v. Keihl, 2 Wright 147. There was no error in this portion of the charge, if we understand it aright. We have looked over this ragged case with care, and as presented see no positive error, while confusion and disorder are apparent at every step. Upon the whole, however, we see no reason for reversal, and therefore the judgment is affirmed.