Hilton v. Overly
Hilton v. Overly
Opinion of the Court
Opinion by
The plaintiff and the defendant each owned a boar pig. One evening the defendant’s boar broke into plaintiff’s barnyard and killed his boar. Suit is brought for its value. Three propositions were submitted by the court to the jury in the following language: (1) Was the animal vicious and did the owner know it? (2) Was the animal at the time of the injury in the control, ownership and possession of the defendant? (3) Did the owner permit the animal to run at large? All of these were questions of fact for the jury and under the instructions of the court any one of these propositions answered in the negative would necessarily result in a verdict for the defendant. As to the first proposition, we think the court was in error in stating that under the circumstances in this case, to hold the defendant the jury must find that the animal was vicious and the owner knew it. “On account of the natural and notorious propensities of horses, cows, and sheep to rove, the owner is bound, at all hazards, to confine them on his own land, and if they escape and do any mischief on the land of another, which they are naturally inclined to commit, the owner is liable to an action of trespass, although he had no notice in fact of such propensity”: Dolph v. Ferris, 7 W. & S. 367. In Troth v. Wills, 8 Pa. Superior Ct. 1, this court held, following a number of
We all know that the males of certain species of animals will almost invariably attack each other, and it was not an essential part of plaintiff’s case to prove that the boar of defendant was of vicious disposition and that the owner knew it; the question should have been submitted to the jury whether the owner, if he allowed such an animal to be at large, was not chargeable with the knowledge that naturally if he were to meet another boar he would be liable to inflict injury. The learned judge, in considering the question whether the case was properly brought before a justice of the peace, commenting on the cases above cited and a number of others, concludes that branch of his opinion in these words, “I am, therefore, of the opinion that, from the trend of these authorities, an action of trespass may be maintained before a justice, where a hog escapes from the owner’s property or from his control on a public road, or is permitted to run at large, and it enters the premises of another and causes damage. If, then, this was all that appeared in the presen]; case, the plaintiff would be entitled to a verdict. It, however, was not the crucial point raised on the trial, and it becomes necessary to turn to the uncontradicted facts as established by the verdict.” He then states that the two questions had been submitted to the jury,- (1) whether the hog was at the time the killing occurred in possession and under
The first and second assignments of error are sustained. The judgment is reversed with a venire facias de novo.
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- Animals — Boar hogs — Propensities—Injuries—Charge of court In an action to recover damages for the death of a boar hog which was killed by another boar hog which belonged to the defendant, it is reversible error for the court to charge that in order to hold the defendant the jury must find that the animal was vicious and the owner knew it. In such a case the question to be submitted to the jury is, whether the owner, if he allowed such an animal to be at large was not chargeable with the knowledge that naturally if he were to meet another boar, he would be liable to inflict injury. Where it is admitted that the defendant was the owner of the boar on the day preceding the trespass, and the defendant testifies that on that day he had loaned the boar to one man and sold it to another, it is for the jury to determine the question of defendant’g ownership and possession of the boar at the time of the killing.