Bradford v. Floyd

• Decision Date: 31 October 1883
• Citation: 80 Mo. 207
• Parties: BRADFORD, Appellant, v. FLOYD.
• Court: Missouri Supreme Court

80 Mo. 207

BRADFORD, Appellant,

v.FLOYD.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Jasper Circuit Court.--HON. JOSEPH CRAVENS, Judge.

AFFIRMED.

Smith & Krauthoff with A. L. Thomas for appellant.

Phelps & Brown for respondent.

PHILIPS, C.

This is an action for damages occasioned to plaintiff's cattle by contact with what are known as Texas cattle. The petition alleged substantially that in July, 1879, the defendant was the owner, etc., of a large number of Texas, Mexican and Indian cattle, diseased and distempered with what is known as Texas or Spanish fever or some other infectious disease, and that defendant wrongfully and negligently failed and refused to restrain them, but negligently suffered them to go at large, off his land, upon the commons, where plaintiff's cattle ranged, and mingled with them, whereby nine head of plaintiff's cattle became infected with said disease and died, to his damage, etc. The answer was a general denial.

Plaintiff's evidence tended to show that defendant had about eighty head of cattle--one-third Texas and the rest Arkansas cattle; that in the summer of 1879 he suffered them to run on the common, where they mingled with plaintiff's cattle; that defendant's said cattle were infected with some contagious disease which was communicated to plaintiff's cattle, and nine of them died in the month of July. The defendant's evidence tended to prove that only nine of defendant's cattle were Texas cattle, and that they were sound and healthy when placed upon and taken off the range, and that the disease of which plaintiff's cattle died was not communicated by defendant's cattle.

On the part of plaintiff, the court instructed the jury that if they found from the evidence that the defendant was the owner of any diseased cattle, and suffered them to go at large, off his own land, upon the range, with the cattle of plaintiff, whereby plaintiff's cattle became diseased, they should find for the plaintiff; also, that the presence of Texas or Spanish fever among the native cattle of plaintiff, on the range with cattle of defendant, was prima facie evidence that the cattle of defendant were affected with Texas or Spanish fever. The plaintiff asked no other instructions.

At the request of the defendant, the court gave the following instructions:

1. The burden of proof is upon the plaintiff, and unless he has satisfied the jury that the cattle of defendant were affected with a contagious disease, which was communicated to the cattle of plaintiff, they will find for defendant.

2. Unless the jury find from the testimony that defendant's cattle had some contagious or infectious disease at the time they were placed upon the range, and also that it was communicated to the cattle of plaintiff, they will find for defendant.

The court, of its own motion, and over the objections of the plaintiff, gave the following instruction: “Plaintiff can only recover damages for injuries to such of his cattle as the evidence shows were injured or died from infectious disease contracted from defendant's cattle, while defendant's cattle were off the land where they belonged, unless the jury believe that the defendant's cattle were diseased Texas cattle, and as such communicated the disease to plaintiff's cattle, of which they died or were injured.”

The jury found the issues for the defendant, and the plaintiff has appealed.

1. INSTRUCTIONS: harmless error.

The giving of the second instruction on behalf of the defendant, is chiefly complained of by appellant. Had the plaintiff otherwise shown a good cause of action in his petition and proofs, and no other instruction been given in the case, the second instruction aforesaid might have been objectionable as perhaps limiting the plaintiff's right of recovery to proof that the cattle were diseased at the time they were turned on the range. But taken in connection with the issues made in the pleadings and all the instructions given, it is manifest that the jury could not have been misled by it. And in such case this court will not reverse for an error in the phraseology of a single instruction. Nelson v. Foster, 66 Mo. 381; Blewett v. Railway Co., 72 Mo. 583.

2. TEXAS CATTLE: judicial notice.

The argument of appellant throughout is based on the assumption that the courts, even in the form of action adopted by the petition, will take judicial cognizance of the fact that during the season of the year when the defendant's cattle were upon the commons they possessed some contagious or infectious disease communicable to native cattle coming in contact with them; and, therefore, the defendant is liable for any injury resulting from such contagion, no matter whether he knew the particular cattle in question were so diseased or not. We know of no such established rule of law in respect of the so-called Texas or any other cattle. If we were to indulge in observations made in pais, or testimony delivered at nisi trials, or recur to current history and the reports of the national bureau of agriculture, it would be apparent that there is scarcely any subject about which there is such a diversity of opinion among practical cattle-men and scientists as that pertaining to the cause and character of the so-called Texas or Spanish fever in cattle, and especially as to its contagious and infectious properties, and the conditions under which native cattle will take it. Much seems to depend upon climatic influences, the seasons of the year and even the character of the particular season during which the disorder is supposed to be most infectious or contagious. The legislation of this State, based on...