The appellee, Crow, sued appellants, Phillips and Irby, for conversion of 29 head of stock cattle, and in the alternative for possession of said cattle and damages on account of their wrongful taking and detention by defendants. The defendant Irby denied that he had taken possession of said cattle with any intention of converting them, but alleged that such possession was taken for the purpose of preventing their trespassing on his premises and destroying his crops. He pleaded that plaintiff's field adjoined this defendant's, and that the defendant had between them a fence sufficient to protect the inclosure from entry of cattle of the usual and ordinary disposition; that plaintiff's said cattle were of a breachy, fence-breaking nature, and that plaintiff, knowing such fact permitted them to range on his own field, knowing that they would break through the fence and destroy defendant's crop; that said cattle did break through said fence and damaged defendant's crop, and said defendant Irby, by a counterclaim, sought to recover damages for the value of his crop so destroyed. The defendant Phillips' connection with the case grew out of the alleged fact that he assisted the defendant Irby in taking possession of and holding said cattle, but, as none of the assignments relate specifically to his liability, independent of the rights of the said Irby, it is not necessary to further state the pleading or evidence in relation to the issues presented as to said defendant. The plaintiff, by a supplemental petition, alleged that the `defendant Irby was guilty of contributory negligence in that he failed to erect and maintain a fence around his field sufficient to keep out cattle of ordinary disposition.
The evidence was sufficient to require a submission to the jury of the issues as to the breachy nature of plaintiff's cattle, his knowledge thereof, and the sufficiency of the defendant Irby's fence to turn cattle of ordinary disposition. In the charge to the jury the court gave the ordinary definition of negligence, contributory negligence, and proximate cause, and submitted special issues, one of which required a finding as to whether the plaintiff, Crow, was guilty of negligence in putting his cattle in his field adjoining that of the defendant Irby, which issue was answered in the affirmative, but the jury answered another issue to the effect that such negligence was not the proximate cause of the entry of the cattle into defendant Irby's field. The second issue submitted was as follows:
"(2) Was defendant's west fence such a fence as was reasonably sufficient to exclude from his field cattle of ordinary disposition as to breaking fence and which were not of a vicious or fence-breaking nature?" To which the jury answered: "We do not agree."
The seventh issue submitted was as follows:
"(7) Was defendant Joe Irby guilty of contributory negligence as same has been defined, in either failing to erect and maintain a sufficient fence along the west line of his field, if he did, or in permitting said fence to become dilapidated and the wire slack, if he did, or in the matter of setting said fence with small posts at the distance they were apart, if he did, or in the matter of not building said fence of sufficient height to turn cattle of ordinary disposition, if he did?" To which the jury answered: "Yes."
The eighth issue was as follows:
"If you answer `Yes' to the last question, then say whether or not such contributory negligence, if such there was on the part of the said defendant, contributed to or caused said cattle to breach said fence as a proximate result thereof?" To which the jury answered: "Yes."
The jury also found that plaintiff was damaged $144 on account of loss of milk from cows held by defendants, and made partial findings as to the value of the defendant Irby's crop destroyed by said cattle. Upon this verdict the court entered judgment for the plaintiff for the recovery of said cattle and the sum of $44 damages, and that the defendant Irby take nothing by his crossaction against the plaintiff.
Appellant insists that no judgment could be entered on the verdict of the jury because of its failure to agree on an answer to the second issue above quoted, which presented a material issue as to appellant Irby's right to recover on his counterclaim, while appellee contends that the answer of the jury to the seventh and eighth issues virtually disposes of this issue against appellant, so that an answer to the second issue becomes immaterial. We take it that the jury, in answering that the plaintiff was guilty of negligence in putting his cattle in the field adjoining defendant Irby's, probably found that said cattle were known to the plaintiff to be breachy. There is no contention that appellant Irby's fence was a statutory lawful *Page 852 fence, but the evidence, as we have said, is sufficient to warrant the submission of the second issue to the jury. The law as to appellant Jury's rights under such circumstances is well settled by decisions of the Supreme Court in the case of Clarendon Land Investment Co. v. McClelland, 86 Tex. 179, 23 S.W. 576, 1100, 22 L.R.A. 105, and Id.,89 Tex. 483, 34 S.W. 98, 35 S.W. 474, 31 L.R.A. 669, 59 Am. St. Rep. 70, and is thus stated by Judge Brown in the report of the decision in 89 Tex. 483, 34 S.W. p. 99, 31 L.R.A. 669, 59 Am. St. Rep. 70:
"(1) That the common-law rule, which required every man to restrain his cattle either by tethering or by inclosure, is not in force in this state, and that every owner of land in this state who desires to exclude therefrom cattle running at large, or in an adjoining pasture, situated as these pastures were, must throw around his own land an inclosure sufficient to exclude all animals, of the class intended to be excluded, of ordinary disposition as to breaking fences or inclosures. (2) It is the right of every owner of domestic animals which are not known to him to be vicious, mischievous, or diseased to allow them to run at large, or to occupy his own inclosed lands when adjoining those of another. (3) If the owners of land have around it a fence sufficient to turn cattle of all sizes and kinds, of ordinary disposition as to breaking fences, and the inclosure is entered by cattle which are known to the owners to be vicious, in the sense that they have the habit of breaking into inclosures when the same class of cattle would not ordinarily do so, the owner of such cattle would be liable for such damages thereby occasioned as would ordinarily result from such trespass."
It will be noted that in this statement of the law no mention is made of negligence. However, a reading of the reports of the case disclose that the act of the owner of breachy cattle known to him to be so in allowing them to run at large, as also the failure of the owner of land to surround it with a fence sufficient to exclude the class of stock of the ordinary disposition which it is desired to exclude, is characterized as negligence. The application of the term may not be strictly proper, for those decisions and a consideration of the principles upon which the conclusion announced is reached show that the question of negligence does not become one of fact, as in the ordinary case of nonstatutory negligence, but follows as a matter of law a finding of the existence of certain facts without a further finding as a matter of fact that they constitute negligence. The following authorities, as well as the announcement of the law in the case of Clarendon Land Investment Co., Ltd., v. McClelland, supra, support this conclusion. Congress Empire Spring Co. v. Edgar, 99 U.S. 615, 25 L. Ed. 488; Cooley on Torts (3d Ed.) vol. 2, p. 696; Thompson on Negligence, vol. 1, p. 780, § 845. The law as stated by the Supreme Court, grows out of a modification to suit the conditions of the settlement of this country of the common-law rule announced by Shearman Redfield on the Law of Negligence, § 27, and quoted by judge Brown in the opinion in the case of Clarendon Land Investment Co., Ltd., v. McClelland, reported in 89 Tex. 483, 35 S.W. 475, 31 L.R.A. 669, 59 Am. St. Rep. 70, as follows:
"The owner of large animals (such as horses, oxen, sheep, etc.) is under an unqualified obligation at common law to restrain them from trespassing upon lands of other persons; and he is therefore unconditionally liable as a trespasser himself for any trespass committed by his animate property. The law conclusively presumes negligence against him, without regard to the facts of the particular case. Whatever damage his animal does while trespassing is an aggravation of the trespass, for which he is also liable."
And the law, as announced in the McClelland Case, supra, is the result of a modification of this rule and the application of the principle that the owner of an animal, known to him to be vicious, is liable for injury inflicted by him if he does not restrain him. Upon the establishment of such facts the law, as in the case of the trespassing animal at common law, conclusively presumes negligence, and it does not become an issue of fact. Also if the defendant's fence was not sufficient to prevent the entry of stock of ordinary disposition, he could not recover because there would be a conclusive presumption of negligence against him. So in this case, if the jury had returned an affirmative answer to the second issue, the defendant would have been entitled to damages, assuming that the finding of negligence on the part of appellee in turning his cattle into his own field is based on the fact that said cattle were breachy, and this fact was known to appellee. A finding on the issue was therefore material. We cannot say that the finding of contributory negligence against the defendant, in answer to the seventh issue is equivalent to a finding that defendant's fence was not sufficient to turn cattle of ordinary disposition. The jury evidently did not understand the issues to be identical, otherwise they could not have answered one and failed to agree on an answer to the other. The court must not have so understood it either, or he would not have submitted both issues. If plaintiff knew his cattle were breachy when he turned them into his own field, he would be liable to the defendant Irby for damages on account of their breaking into Irby's field if the said defendant's fence around his field was sufficient to turn cattle of ordinary disposition — this qualification as to the sufficiency of the fence was stated only in connection with the last clause of the seventh issue and in connection with the height of the fence. So, that even if it were proper to submit the question of negligence in such case as one of fact, the issue is not literally correctly stated. We are of the opinion that since the jury could not agree on its answer to a material issue as to defendant's counterclaim for damages no judgment could be properly entered on the verdict and the case must be reversed for this reason. Garlitz v. Runnels County Nat. Bank, *Page 853 152 S.W. 1151; Bargna v. Bargna, 127 S.W. 1157.
We suggest that upon another trial it would be well in the submission of these issues to eliminate entirely any issue requiring a finding of negligence and submit only the issues of fact upon which the liability would depend, as stated in the above quotation from the case of Clarendon Land Investment Co. v. McClelland.
The charge refused, made the basis of the first assignment of error, is a correct statement of the law, but if the case is submitted on special issues requiring a finding of fact as to such matters, it would not be necessary to give such charge.
The other assignments present questions which are not likely to arise upon another trial, and need not be discussed.
Reversed and remanded.