Anderson v. Blackfoot Livestock Commission Co.

• Decision Date: 01 November 1962
• Docket Number: No. 9034,9034
• Citation: 85 Idaho 64,375 P.2d 704
• Parties: Marvin ANDERSON, Plaintiff-Respondent, v. BLACKFOOT LIVESTOCK COMMISSION CO., Blaine Ramey, Doctor Harris W. Sorensen, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 704

375 P.2d 704

85 Idaho 64

Marvin ANDERSON, Plaintiff-Respondent, v. BLACKFOOT LIVESTOCK COMMISSION CO., Blaine Ramey, Doctor Harris W. Sorensen, Defendants-Appellants.

No. 9034.

Supreme Court of Idaho.

Nov. 1, 1962.

Albaugh, Bloem, Smith & Pike, Idaho Falls, for appellants.

Black & Black, R. M. Whittier, Pocatello, for respondent.

McQUADE, Justice.

This is an action by the plaintiff, Marvin Anderson, to recover damages occasioned by the death of hogs, alleged to have been caused when the animals contracted hog cholera.

Plaintiff alleges (1) that the defendant, Dr. Harris W. Sorensen a duly licensed and practicing veterinarian, was negligent in the inoculation and vaccination of the swine; (2) that the defendant Commission Co. sold plaintiff swine that were infected with hog cholera which caused those animals and others owned by plaintiff to sicken and die of that disease; (3) that the defendants failed to maintain the sales ring for the sale of swine in a sanitary condition as required by I.C. § 25-1712 and that this failure resulted in the losses complained of; and (4) that the defendants warranted that the swine sold plaintiff were fit and healthy, free from hog cholera, and properly inoculated and vaccinated against the disease when in fact they were not as warranted.

Defendants denied negligence on their part and assert insufficiency of proof to establish any disease was contracted through hogs purchased from the Blackfoot Livestock Commission Co.

Plaintiff, Marvin Anderson, was engaged in the business of raising hogs in 1959. On or about the first day of July, 1959, the plaintiff had about 350 hogs on his farm. Of this number, the plaintiff had obtained some from farrowing and had purchased the remainder. During the preceding month, plaintiff purchased some 121 hogs from the defendant Commission Co., and either 54 or 55 hogs from the Cache Valley Livestock Auction Company. Early in May, plaintiff purchased 5 hogs from Joe Rossi. The remaining hogs were raised by the plaintiff.

On July 3, 1959, plaintiff purchased 12 hogs, and between July 3 and July 10, he purchased 28 additional head, all from the defendant Commission Co. Plaintiff was charged by defendant Commission Co. for vaccination of all of the hogs purchased.

The record further shows that the plaintiff purchased hogs from the Cache Valley Livestock Auction Company, and paid that concern for their vaccination. The hogs purchased from Joe Rossi were not vaccinated.

Plaintiff testified that he kept hogs of different weight in different pens.

Plaintiff's testimony relating to the pens in which he placed the hogs purchased in June is not altogether clear. Plaintiff did state, however, that the hogs purchased from the defendant Commission Co., in July, were placed in the 'Intermountain Pen,' and that on July 17, 1959, the only hogs in that pen were those purchased from the defendant Commission Co., and hogs of similar size raised by himself.

On July 15, 1959, plaintiff noticed that 6 hogs were not up and eating--nor acting in a manner he considered normal. Later that day one of them died. By the 21st, many more pigs were sick, with several dying between the 17th and 21st. Both plaintiff and his wife testified that they could identify those hogs, which first became sick, by their markings and that they were among those purchased from the defendant Commission Co., between the third and tenth of July.

On July 21st, plaintiff called Dr. Kershaw, a Blackfoot, Idaho, veterinarian for assistance. He was advised to bring a dead hog to Dr. Kershaw's laboratory, where an autopsy was performed. Dr. Kershaw and his associate, Dr. Glarborg went to the Anderson ranch to examine the herd. As a result of their findings in performing the autopsy on the pig brought to them, in examining the herd at the Anderson ranch, and, according to their testimony, because plaintiff told them that all of the pigs had been vaccinated for hog cholera, Dr. Kershaw and Dr. Glarborg concluded that the animals had erysipelas. They advised plaintiff to have his hogs vaccinated with erysipelas serum and fortified penicillin. This was done on the night of the twenty-first.

There is some conflict in the testimony as to whether the hogs showed any improvement immediately following the vaccinations for erysipelas, but hogs continued to die. On July 28th, plaintiff contacted Dr. Hayden, another veterinarian, and asked him to inspect the herd. Dr. Hayden went to plaintiff's ranch and, after inspecting the animals, stated that he 'had a suspicion' the hogs might have cholera. He then contacted Dr. Schneider, Director of Bureau of Animal Husbandry of the State of Idaho, informed him of his suspicions, and requested assistance in making a diagnosis. Several veterinarians then met at plaintiff's ranch and performed several more autopsies. The veterinarians were quite certain that the animals had hog cholera and advised the plaintiff to vaccinate the hogs against cholera. This was done the following night. Plaintiff's ranch was placed under quarantine.

Plaintiff lost 241 hogs and incurred other expenses, for which he seeks reimbursement from the defendants.

At the trial of the cause, testimony by veterinarians was elicited relating to effect and interpretation of regulations issued by the Idaho Department of Agriculture regulating use of hog cholera serum, or serum and virus in sales yards. So too, testimony was adduced concerning the type of immunity obtained where a hog is vaccinated with serum as distinguished from immunity obtained by vaccination with either virus or modified live-virus. The record is undisputed that serum provides immediate immunity to a maximum of 21 days. Modified live-virus provides immunity after about 14 days and such immunity will exist about two years.

Plaintiff contended at the trial that the defendants either failed to inoculate some hogs he purchased from the Commission Co., or they were improperly inoculated, resulting in his herd becoming infected with hog cholera. Plaintiff's theory was that the disease came from hogs purchased from the defendant Commission Co., and thereafter spread to other hogs in plaintiff's herd. His proof was calculated to establish that the first hogs to become sick were those purchased between July 3rd and 10th; that no other hogs were infected prior to that time; that the hogs purchased from the Cache Valley sales yard were not infected and they did not become sick or die during the outbreak of hog cholera; that the hogs purchased from the Rossi farm were disposed of prior to the outbreak of hog cholera on plaintiff's farm; and that defendants had either improperly inoculated the hogs or had not inoculated them at all.

At the conclusion of the trial, the jury rendered two verdicts, one verdict for the plaintiff and against the defendant Commission Co. in the sum of $2,258.57, and a second verdict in the sum of $2,258.57 for the plaintiff and against the defendant Dr. Harris W. Sorensen. Defendants appeal from the judgment entered on the verdicts.

Defendant Commission Co. assigns error of the trial court in refusing to grant its motion for a directed verdict on grounds of insufficiency of the evidence. In support thereof this defendant asserts that the plaintiff failed to prove agency between the veterinarian and the Commission Co., and failed to prove any duty, or violation of duty, on the part of the Commission Co. in the vaccination of the hogs, or that the violation of duty, if any, was the cause of hog cholera in the hogs.

Some of the duties that the Commission Co. owed to the plaintiff arose, in this case, by force of regulations issued by the Director of the Bureau of Animal Industry, pursuant to statutory authority of the Commissioner of Agriculture. The regulation, as modified October 1, 1958, in pertinent part is as follows:

'* * * The following is the regulation governing the treatment of swine against Hog-Cholera at sales yards and their release. * * *

'It is the intent that the use of modified live-virus vaccine comes within the meaning of this regulation.

'Regulation No. 168

'To: Deputy State Veterinarians, Sales Yards, Stockyards, Hog Pool, and Auction Sales Yards:

'This is to inform you that effective today, August 14, 1947, the Idaho Bureau of Animal Industry is revising the regulation on swine to read as follows:

'All swine in any stockyards, sales-yards, hog pools, or auction sales yards sold except for immediate slaughter shall be treated for hog-cholera. Treatment shall be a protective treatment by either serum or serum and virus.

'The use of serum and virus should only be used upon the advice of the owner and his veterinarian.

'All pens, wherein swine are held prior to or after their sale, must be thoroughly cleaned and disinfected between sale days.

'Swine may be released without treatment at the yard when permission is obtained from the Deputy State Veterinarian in charge of vaccination at said sales yards when such animals are to be treated under official supervision on the home ranch or in other cases that are deemed advisable by the Deputy State Veterinarians.'

This Court has long been committed to the following rule on review of appeals from a denial of a trial court to grant a motion for a directed verdict:

'The rule, we think is that in a motion for nonsuit or directed verdict the evidence must be construed in the light most favorable to plaintiff. It is only where there is an entire absence of testimony tending to establish the case that a nonsuit may be properly ordered or a directed verdict granted. Where the question depends on a state of facts from which different minds may honestly draw different conclusions on that issue the question must be submitted to the jury for determination. Where facts are disputed or inferences therefrom are reasonably disputable, the question is one for the jury.' Hobbs v. Union Pacific R.R. Co., 62 Idaho 58, 108 P.2d 841; Claris v....