Altenderfer v. Harkins

• Citation: 243 S.W.2d 558
• Decision Date: 05 November 1951
• Docket Number: No. 21630,21630
• Parties: ALTENDERFER v. HARKINS.
• Court: Court of Appeal of Missouri (US)

Page 558

243 S.W.2d 558

ALTENDERFER v. HARKINS.

No. 21630.

Kansas City Court of Appeals, Missouri.

Nov. 5, 1951.

R. Leroy Miller, Trenton, W. V. Mayse, Bethany, for appellant.

Herbert S. Brown, Robert B. Loman, Trenton, Roscoe E. Moulthrop, Bethany, for respondent.

CAVE, Judge.

This is a suit for damages alleged to have resulted from defendant selling plaintiff certain hogs which were infected with cholera. Trial resulted in a verdict and judgment for plaintiff in the sum of $1,350.70, from which the defendant appealed.

The only assignment of error is that the court should have sustained defendant's motion for a directed verdict because there was no substantial evidence that the defendant knew or by the exercise of reasonable diligence could have known that the hogs were so infected.

Plaintiff's petition is founded on Sec. 267.440 R.S.1949, the material part of which reads: 'It shall be unlawful for any person to sell or offer for sale any swine in this state which is infected with hog cholera, or any other disease; * * *.'

The cases uniformly hold that a suit for damages may be brought for a violation of this statute and, with equal uniformity, they hold that there must be substantial evidence that the seller knew or had reasonable cause to suspect that the hogs were so infected. Shank v. Lesich, Mo.App., 296 S.W. 224; Wells v. Welch, 205 Mo.App. 136, 224 S.W. 120; Hart v. Horine, Mo.App., 34 S.W.2d 524. The petition is drawn on this theory and plaintiff's main instruction submits the case on that theory.

Because of the one assignment of error, we need not review the evidence which tended to support the allegation that the hogs were infected at the time of the sale, and that they communicated this disease to other hogs belonging to the plaintiff, resulting in 38 of his hogs dying to his damage in the amount of the verdict. Defendant does not dispute the sufficiency of the evidence on those issues.

We shall consider the evidence which tends to support the essential element of plaintiff's case, that defendant knew or had reasonable cause to suspect that the hogs were infected. In passing upon the question of the sufficiency of the evidence on this issue, we must keep in mind two well recognized principles of law: (1) that a motion for a directed verdict can be sustained only when the facts in evidence and the legitimate inferences therefrom are so strongly against the verdict as to leave no room for reasonable minds to differ; Kick v. Franklin, 342 Mo. 715, 117 S.W.2d 284; Vol. 27 Mo.Dig., Trial, 142; (2) that plaintiff's case may be made out or aided by defendant's evidence if such evidence is not in conflict with plaintiff's own testimony or with the fundamental theory of plaintiff's case, and that the jury may believe all of the testimony of any witness or none of it, or may accept it in part or reject it in part, just as it finds the same to be true or false when considered in relation to the other testimony and the facts and circumstances of the case. Hutchison v. Thompson, Mo.Sup., 175 S.W.2d 903, 911; Vol. 12, Mo.Dig., Evidence, k592.

The evidence is that defendant was engaged in the buying and selling of hogs and cattle and had barns and pens located on a tract of land he owned adjoining Trenton, Missouri. He had been so engaged for a number of years. Plaintiff's witness, Sommerville, testified that he owned and operated a truck in which he hauled livestock for defendant on many occasions; that on Saturday morning, August 13, 1949, defendant called him at his home and asked him to come to plaintiff's place of busines; that when he arrived he and the defendant 'went back in the hog yards, he wanted to look at some hogs there, and he wanted to know if I seen anything wrong with any hogs and I said I didn't see nothing the matter with them; there was several head there. He said I don't see anything wrong with them. He wanted to know if I could go to Chillicothe, I told him not at that time, that I have business up town for a while. * * * He wanted to know if I could go along about noon, and I said far as I know.' Sommerville returned to defendant's stockyards about noon and they loaded 6 hogs in his truck. These were the same hogs about which defendant had previously talked to Sommerville, and at that time defendant asked him if he had noticed anything wrong with them. At the time the hogs were loaded defendant asked Sommerville what he would charge to haul them to Chillicothe, and he told him the charge would be $5, whereupon defendant said to the witness: 'If you get down there about the time the sale starts, he would give me $5.00 extra.' The defendant also told Sommerville to sell the hogs in his (Sommerville's) name at the Community Sale Barn at Chillicothe. The hogs were taken to Chillicothe by Sommerville and sold in his name to the plaintiff. When the hogs were unloaded at his farm one had 'diarrhea and passed a couple of worms.' The next morning when plaintiff went to feed the hogs he noticed that two refused to eat and were not standing straight on their front legs; one of these hogs died on Tuesday night following the sale, and the other one died on Wednesday night, and about one week later other hogs became sick and he eventually lost 38. A veterinarian determined, by post mortem, that the hogs had cholera. On Thursday, following the sale on Saturday, plaintiff's father went to see the defendant and details their conversation as follows: 'Q. What did you say * * * about the sick hogs? A. I says did you...