Alfrey v. Shouse

• Citation: 173 S.W. 792,163 Ky. 333
• Parties: ALFREY v. SHOUSE ET AL.
• Decision Date: 04 March 1915
• Court: Court of Appeals of Kentucky

173 S.W. 792

163 Ky. 333

ALFREY v. SHOUSE ET AL.

Court of Appeals of Kentucky.

March 4, 1915

Appeal from Circuit Court, Bath County.

Action by Wes Alfrey against Isaac Shouse and another. From a judgment for defendants, plaintiff appeals. Affirmed.

G. C Ewing, of Owingsville, and C. W. Nesbitt, of Mt. Sterling for appellant.

C. W Goodpaster, of Owingsville, for appellees.

CLAY C.

Section 62 of the Kentucky Statutes is as follows:

"If the owner of any distempered cattle, or hogs diseased with hog cholera, shall permit them to run at large outside of his inclosure, or shall drive the same into or through any part of this commonwealth, unless it be from one portion of his own inclosure to another, he shall forfeit and pay the sum of ten dollars for each head, and be liable by civil action for any damage that may occur by the spreading of the disease; and when any such cattle or hogs shall die, the owner thereof shall cause them to be burned or buried, and if he fail, he shall be fined five dollars for each offense."

Plaintiff, Wes Alfrey, brought this action against defendants, Isaac Shouse and John S. Craig, to recover damages for a violation of the foregoing statute. A demurrer was sustained to the petition, and the petition dismissed. Plaintiff appeals.

The petition charges: That the defendants were the owners of 90 hogs which were diseased with hog cholera. That the defendants drove these hogs along the public highway of Bath county, and into and upon plaintiff's premises, by and with plaintiff's consent and permission, and that plaintiff did not know that the hogs had the cholera. It further charges that the disease was thereby communicated to plaintiff's hogs, and by reason thereof he was damaged in the sum of $500.

The demurrer to the petition was sustained on the ground that it did not charge that defendants knew or had knowledge of such facts as would lead an ordinarily prudent person to believe that the hogs were diseased. The question presented is whether or not it is necessary to show such knowledge on the part of the owner in order to charge him with liability under the statute. This question has not heretofore been considered. Under the common law, it is well settled that knowledge is necessary to a recovery. Vrooman v. Lawyer, 13 Johns. (N. Y.) 339; Dearth v. Baker, 22 Wis. 73; Lyke v. Van Leuven, 4 Denio (N. Y.) 127. Where, however, statutes make it the duty of owners to detect disease in their animals and report the outbreak of same within a stipulated time, and not to move them, except by permission of state officers, a recovery may be had without allegation or proof of knowledge by the defendant that the animals were diseased. North v. Woodland, 12 Idaho 50, 85 P. 215, 6 L.R.A. (N. S.) 921. It is also held, under statutes prohibiting the driving or shipping of infected cattle, that plaintiff is not required to prove that defendant knew as an absolute fact that the cattle, when being shipped, were carrying the disease germs with them, if they were shipped from a locality known to be infected or liable to communicate the disease. State v. Rasmussen, 7 Idaho 1, 59 P. 933, 52 L.R.A. 78, 97 Am.St.Rep. 234. But, under the majority of the statutes, the owner of animals is not liable for injuries from disease communicated by them, unless he knew or had reason to know of their condition. Furley v. Chicago, etc., R. Co., 90 Iowa 146, 57 N.W. 719, 23 L.R.A. 73 (construing Acts Iowa 21st Gen. Assem. c. 156); Coyle v. Conway, 35 Mo.App. 490 (construing Mo. Rev. St. 1879, §§ 4358, 4359); 1 R.C.L. 101; 6 L.R.A. (N. S.) 922, note; 15 Ann.Cas. 1004, note.

In Furley v. Chicago, etc., R. Co., supra,...