Brown & Co. v. Bennett
| Decision Date | 13 March 1916 |
| Docket Number | 246 |
| Parties | BROWN & Co. v. BENNETT |
| Court | Arkansas Supreme Court |
Appeal from Logan Circuit Court; Jas. Cochran, Judge; affirmed.
STATEMENT BY THE COURT.
Appellee brought this suit against appellants for damages resulting to his horses from an infectious disease negligently communicated to them. The complaint alleges that a pair of mules kept by defendants and driven by their agent, Parker employed in the service of the firm in driving a poultry wagon, were allowed to the kept in his barn at the request of defendants; that they were kept in the barn while they were infected and diseased with a contagious disease, distemper and known to be so diseased; that his horses were kept in the barn at the time and immediately after defendants took away their mules and before same was disinfected and that the disease was communicated to his horses. It further alleged damage to the horses, two of them dying therefrom and prayed judgment in the sum of $ 505.
The answer admitted that the mules were kept in the barn, alleged that they were free from any disease or any form of distemper and that other animals were kept in the barn besides theirs and if the disease was communicated to plaintiff's stock it was from other infected animals being stabled therein, and alleged specifically that a horse, the property of D. E Johnson infected with distemper was stabled in the barn some time prior to plaintiff keeping his horses there.
It appears from the testimony that the appellants were the owners of the mules used in the poultry wagon sent out in the country by them in charge of the driver, Parker; that the mules were infected with distemper at the time they were being stabled in the barn of appellee when they were in town between trips; that appellee's horses after they were put in the barn where the mules had been kept, took the distemper and one mare and colt died from the disease and the other mare recovered but was considerably damaged thereby and less valuable thereafter.
Several witnesses testified as to the character of the disease and its indications, some stating positively that the mules were infected with it and known to be so by the driver, Parker who had them in charge and whose business it was to drive the wagon about through the country and take care of the team. One witness testified that a member of the firm told him he knew that the mules had distemper and intended to tell the appellee about it, but forgot to do so.
Several witnesses testified about the value of the animals and the cost of medicine and care for them during the time they had the disease.
The court instructed the jury, giving over appellants' objection number 5, as follows: "I charge you that while defendants before they could be held liable for damages for the injury complained of must have known these mules were infected with a contagious and infectious disease yet if you find from a preponderance of the testimony that the defendants' agent who had said mules in charge knew that said mules were so infected with a contagious and infectious disease known as distemper, then the defendants are held in law to have known this fact, as knowledge of the agent is in law knowledge of the principal."
From the judgment on the verdict against them, appellants prosecute this appeal.
Judgment affirmed.
Sam R. Chew, for appellants.
1. The onus was on appellee to prove by a preponderance of the evidence that appellants' mules were in fact infected with distemper and that appellants knew this and that the mules were liable to communicate this disease to appellee's stock. 58 Ark. 401; 57 Id. 402. There is no proof that the mules had distemper, or that appellant knew it.
2. The so-called expert testimony was not competent. 87 Ark. 243; 100 Id. 518; 103 Id. 196.
3. The court erred in its instructions. Nowhere can it be found that appellants or their agent knew the mules were infected with a contagious and infectious disease. They were abstract, misleading and prejudicial. 26 Ark. 513; 29 Id. 151; 36 Id. 641. Instructions should be hypothetical and only embody the law as applicable to the facts, but not assume facts to be proved. 14 Ark. 286; 76 Id. 468; 45 Id. 256; 71 Id. 38.
The court also erred in its instructions as to the amount of damages. 105 Ark. 205; 87 Id. 123. The instructions asked by appellant should have been given; they state the law correctly. 69 Ark. 134; 82 Id. 499; 96 ld. 206.
D. E. Johnson for appellee; R J. White, of counsel.
1. All the allegations of the complaint were sustained by substantial proof. 58 Ark. 401.
2. Knowledge of the agent is knowledge of the principal. 79 Ark. 283; 86 Id. 538. Distemper is contagious and appellants knew it.
3. The testimony was competent. The value of the animals was proven. 89 Ark. 111. The instructions as a whole...
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