Montgomery v. Breed , 34 Wis. 649 ( 1874 )

Cole, J.

We think the circuit court erred in not granting the motion for a new trial. The verdict is unsupported by the evidence, and is directly in conflict with the instructions of the court, which contain a correct exposition of the statute under which the action is brought. That law (ch. 93, Laws of 1870), is entitled “ an act for the improvement and raising of stock,” and prohibits certain male animals from running at large, under the penalty therein prescribed. The plaintiff took up a bull belonging to the defendant, which he claimed was running at large in violation of this statute. The defendant, without the consent of the plaintiff, and without paying any penalty or charges, took the animal from the barn where it was confined; and the action is brought under section 9 to recover the value of the animal.

The uncontradicted evidence in the case shows, that without any fault or negligence on the part of the defendant, the animal escaped from his inclosure into the highway, and followed off other cattle passing along the highway ; and that as soon as the defendant learned that the animal was at large, he took prompt-means to recapture it. But before the defendant’s servant found the animal, the plaintiff had seized it and shut it up in the barn whence it was taken. The court charged the jury that unless they should find that the defendant permitted or suffered the bull to run at large, or if the bull escaped from the defendant’s inclosure without his fault, and the defendant made all reasonable efforts to recapture him before taken, then the statute did not apply, and there could be no recovery in the action. These instructions were excepted to by the plaintiff. The plaintiff likewise requested the court to charge as follows : “ If you find that the plaintiff found defendant’s bull, over one year old, running at large, and that the plaintiff took him up and secured him in a secure place, and the defendant, on the same evening, without the knowledge or consent of the plaintiff, the finder, came in the night time and took away said bull, without paying the lawful charges incurred or offering to pay them, then the plaintiff is entitled to recover the value of the bull as proven.” This instruction the court gave, with the modification, “ unless you find that the bull was at large without any fault of the defendant.”

It will be seen at once wbat view tbe learned circuit judge took of the statute. He held that where the animal escapes from the owner’s inelosure without any fault or negligence on the part of such owner, and where every reasonable effort is made to recapture the animal as soon as its escape is known or discovered, to such a case the statute was never intended to apply. It seems to us that this construction is correct. It is unreasonable to suppose that the legislature intended the statute to include an escape of an animal from the inclosure against the wish of the owner, who has exercised all reasonable care and vigilance to keep, it upon his own premises. The language is, that the owner of any stallion, bull or boar, “ who' shall permit or for any reason suffer the same to run at large,” shall incur the penalties of the act. The words used imply a choice or design on the part of the owner to allow the animal to go at large, when he might restrain and keep it in his own premises or within a proper inclosure. In this case the evidence all shows that the animal escaped from a proper inclosure against the wish of the owner, and' without any fault on his part. In no correct sense did the owner permit or suffer the bull to run at large: but he used all reasonable means to prevent its doing so. And as there was no dispute or conflict in the testimony upon this point, the court should have set aside the verdict as not warranted by the facts proven.

It was claimed by the counsel for the defendant, that section 9, which fixes the value of the property as the measure of recovery by the finder, when the animal is taken away without his consent and without first paying all lawful charges incurred in relation to the same, is void. That provision, he insists, is in the nature of a penalty or forfeiture of property; and he argues that under the constitution and according to the decision in Dutton v. Fowler, 27 Wis., 427, it can only be sustained by devoting the payment of the clear proceeds of the recovery to the school fund, instead of giving the amount to the finder. We do not, however, deem it necessary to enter upon an examination of that question at the present time, since it is perfectly obvious that the facts do not bring the case within the section, even if it is a valid provision. The right to declare a forfeiture of property where animals forbidden by this law to run at large are allowed or permitted by the owner to do so, is doubtless the exercise of a very high and delicate police power of the state. It is so high and delicate that a case ought to be brought clearly and plainly within the provision before a court is called upon to enforce the forfeiture. "We are quite well satisfied that the legislature never intended the law should apply to a case like the one before us, for the reasons already given.

By the Gourt —The judgment of the circuit court is reversed, and a new trial awarded.