Cheesman v. Felt
| Decision Date | 07 July 1914 |
| Docket Number | 18,519 |
| Citation | 142 P. 285,92 Kan. 688 |
| Parties | H. T. CHEESMAN, Appellee, v. JOHN A. FELT et al., Appellants |
| Court | Kansas Supreme Court |
Decided July, 1914.
Appeal from Sumner district court; CARROLL L. SWARTS, judge. Opinion on rehearing filed July 7, 1914. Affirmed in part and reversed in part. (For original opinion of affirmance see 91 Kan. 431, 137 P. 800.)
Judgment reversed, affirmed and cause remanded.
SYLLABUS BY THE COURT.
1. SALE--Hogs Infected with Cholera--Finding Supported by Evidence. A finding that the defendants had knowledge of a certain fact is not, under the circumstances of this case, so inaccurate as to justify setting it aside; the evidence clearly showing that they had reason to believe that such fact existed.
2. SAME--Infected Hogs--Notice to Seller--Damages. One who sells hogs infected with cholera renders himself liable for damages if at the time of the sale he had knowledge of such infection or notice of such facts as would put a prudent person upon inquiry, and a reasonable inquiry prosecuted by him would have apprised him of the fact before they were delivered that they were infected.
3. SAME--Punitive Damages--When Allowable. The mere negligent failure to follow up such notice and ascertain the fact does not justify the imposition of punitive damages, such damages being properly awarded only when the defendant is shown to have acted in wanton disregard of the plaintiff's rights.
W. T. McBride, and Harold W. Herrick, both of Wellington, for the appellants.
W. W. Schwinn, of Wellington, for the appellee.
The appellants in their petition for rehearing and in their brief in support thereof insist that the points presented by them in their former brief were not given proper attention when the per curiam opinion was rendered (Cheesman v. Felt, 91 Kan. 431, 137 P. 800), and earnestly reassert that the testimony did not prove sufficient knowledge on the part of the defendants to render them liable for punitive damages, and that the trial court erred in giving and refusing instructions upon this question. A careful reexamination of the former brief and abstracts discloses that upon the original hearing in this court the appellants contended that a demurrer to the evidence should have been sustained; that the court erred in refusing to instruct that in order to render the defendants liable it must affirmatively appear that the hogs had cholera at the time of the sale and delivery; that the answers to certain questions were contrary to the evidence; that there were errors in the instructions touching exemplary damages, the agency of Hough and the matter of knowledge on the part of the defendants, and that the verdict was the result of passion and prejudice.
The petition charged the defendants with selling to the plaintiff hogs infected with cholera which fact they knew but concealed. It appears that about thirty-five head were delivered to the plaintiff on July 19, 1911, negotiations therefor having been made with his agent a short time before. The jury found that the defendants, or one of them, first learned on July 12, 1911, that some of the hogs on the farm had cholera; that two hogs were found dead on that day and the defendants were told that evening.
The jury found the cause of their death was cholera.
The finding to the effect that John A. Felt was a part owner of the hogs in question is with some justification criticized as contrary to the evidence, and yet the testimony of the agent who bought the hogs for the plaintiff and the circumstances shown by the entire evidence make it quite clear that this defendant was connected with the sale and acted much as he would have acted had he in fact been part owner; and while the finding is contrary to the direct testimony of the two defendants it is not contrary to the circumstances shown and the evidence of the agent who testified that he bought the hogs of the Felts.
Finding No. 8, that the defendants knew on July 12 that some of the hogs on the farm had cholera, is asserted to be without support in the evidence. While we do not find any testimony directly showing such knowledge, there are circumstances and conversations shown indicating that they had reason to believe on that date that certain hogs had died of cholera, and the distinction is not sufficient to warrant setting aside the finding complained of.
The record shows facts and circumstances which lend support to the finding that the defendants knew the cause of the death of the four hogs and the pigs referred to in questions 16 and 20, so that such finding can not be deemed contrary to the evidence.
We find no error in the record touching the instructions or findings relative to the agency of Mr. Hough.
The court refused to instruct that unless the jury should find from the evidence that the defendants' failure to make such inquiry or investigation as ordinarily prudent men would have made under the circumstances was the result of a willful disregard on their part of the rights of the purchaser, and that such failure was for the purpose of not informing themselves of the true character of the disease, and of selling the hogs without such knowledge, they would not be liable. An instruction was given that if at the time of delivery the hogs were infected with cholera, and the defendants so knew, and the plaintiff was injured thereby he could recover; that he was not necessarily bound to prove actual knowledge, "but if, from the evidence in this case, you find that the defendants had notice of such facts as would put a prudent person upon inquiry as to whether the hogs were infected with cholera and that a reasonable investigation prosecuted by the defendants would have apprised them of the fact...
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