Eaton v. Winnie

• Decision Date: 12 April 1870
• Citation: 20 Mich. 156
• Court: Michigan Supreme Court
• Parties: Ira Eaton v. Charles Winnie

20 Mich. 156

Ira Eaton v. Charles Winnie

Supreme Court of Michigan

April 12, 1870

Heard April 6, 1870 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Jackson Circuit.

Action on the case. Eaton, the defendant below, being in the occupancy of premises belonging to Winnie, under circumstances which show his occupancy to be that of a licensee merely, used the premises to pasture upon them a flock of sheep affected with an infectious disease; which bye means of this use of the premises, was communicated to the sheep of Winnie, who moved in immediately after the sheep of Eaton had been taken away. For the damages, suffered by Winnie, resulting from the infection thus communicated to his sheep, he brings this action against Eaton. Evidence was offered on the trial to show that Eaton knew of the disease and the danger of and mode of communicating infection from it; and that Winnie was ignorant in these respects.

The questions to be reviewed in this Court were raised in the Court below upon the admissibility of evidence, and also by exceptions to the charge of the Court.

The defendant requested the Circuit Judge to charge the jury:

1. That the plaintiff cannot recover on the third count, for the reason that the acts alleged as willful or negligent were lawful acts on the part of the defendant.

2. That the defendant had the right to put on the premises sheep that had the disease known as the scab.

3. That if the sheep of the plaintiff took the scab by reason of the infection remaining after the occupation by defendant, this would not make the defendant liable.

5. That plaintiff had no right to rely on the statement of Eaton that a frost would kill the scab, but knowing the facts himself, was himself bound to care for his own sheep and see that they were not infected.

6. That said statement of Eaton furnishes no excuse to the plaintiff for not seeing that his sheep were cared for and the disease prevented.

7. That Winnie, knowing that the farm had been occupied by sheep having had the scab, it was his duty to take means to prevent his sheep from taking the disease, and any statement made by Eaton furnishes no excuse.

8. That if Winnie took no means to prevent the disease, he was himself guilty of negligence.

The Circuit Judge refused to charge as firstly, secondly and thirdly as above requested; and also refused to charge as fifthly, sixthly, seventhly and eighthly above requested; but did charge the jury in reference thereto, that if the defendant negligently and knowingly put diseased sheep on the premises, knowing that the disease was contagious, and that the plaintiff's sheep would thereby be injured, he would be liable if plaintiff's sheep were thereby infected; that if the plaintiff was guilty of negligence in trusting to what Eaton said about the disease being cured by the frost, or if he was negligent in putting his sheep on the place after he had knowledge of defendant's sheep being diseased, then the defendant would not be liable on that count; that if the complainant was himself negligent, or lacked due care in placing the sheep on the place, or in other words, if the plaintiff through negligence contributed to the injury he cannot recover.

The defendant excepted to the charges, and the aforesaid refusals. The jury rendered a verdict for the plaintiff; and the judgment entered thereon comes into this Court by writ of error.

Judgment of the Court affirmed with costs.

John D. Conely, for plaintiff in error.

W. K. Gibson, for defendant in error.

This action of trespass on the case arises from injuries to orchard and sheep of defendant, caused by the negligence and willful carelessness of plaintiff in error; and the questions of law submitted to this Court all relate to the last count in the declaration, and the admissibility of the evidence to maintain the same.

It is insisted by plaintiff in error, that he had a right to bring sheep, whether diseased or not, upon the premises sold to Winnie. Also, that whether such right existed or not, the injury to the sheep is too remote to furnish ground for damages.

Negligence is a violation of the obligation which requires care and caution in what we do.--4 Comst. 349; 16 Ind. 312; Sherman and Redfield on Negligence, 5.--The question of negligence depends on the facts in the particular case, and is not an abstract question of law.--30 How. Prac., 219; 4 Barb. 193; Sherman and Redfield on Negligence, 8, 19.--The injuries charged in the third count were the proximate and not the remote consequences of the willful, careless and negligent acts of Eaton, and he should be held responsible for the damage.--8 Pars. on Cont., 178; 3 Pars. on Cont., 179; 1 Hillard on Torts, 84, § 11; 13 Wend. Rep., 518.

Eaton had no right or permission to occupy the premises with his sheep. The diseased sheep were brought thereon by him after. Winnie received his deed. Eaton knew the contagious character of the disease, and his conduct evinces a reckless disregard of consequences, which he might well have anticipated, in which case he will be held liable even for remote consequences.--3d Ed. Sedgwick on Damages, 79. 88.

There was no concurring negligence on the part of Winnie. The rule that a plaintiff in an action for negligence, must himself be free from negligence, requires only this, that he should have used such care as a man of ordinary prudence would employ under the circumstances.--22 N. Y., 209; Sherman and Redfield on Negligence, 28.

This is not a case of damnum absque injuria. The injury was not caused by the prudent and reasonable and lawful exercise of any right on the part of Eaton.

D. Johnson, on the same side.

The errors assigned on the rulings of the Court below, on the admissibility of evidence, are of no consequence, because the same questions are raised on exceptions to the charge of the Court in the submission of the case to the jury. The principal question in this case is, whether the facts set up in the third count of the declaration constitute a cause of action.

In the first request, the Court is asked to instruct the jury that the plaintiff below could not recover on the third count, for the reason that the acts alleged as willful or negligent were lawful. Second, That the defendant had the right to put on the premises sheep diseased with the "scab." Third, If the plaintiff's sheep became diseased, the defendant was not liable.

By refusal to charge as requested, the Court said to the jury, in substance, that the defendant could incur a liability to the plaintiff by putting diseased sheep upon his premises while in the temporary possession of them, provided he knew said disease to be infectious, and that plaintiff intended to bring sheep upon the premises, and that they would be likely to take on said disease. And this is the question for review.

Error is also assigned upon the refusal to charge that the plaintiff below had no right to rely on the statement of defendant that the frost would destroy the infectious properties of the disease, or as expressed in said request, "kill the scab," and was guilty of negligence in doing so. The Court refused to charge as requested, either in form or substance, but did charge what we claim to be the law of the case, viz: "That if the defendant negligently and knowingly put diseased sheep on the premises, knowing that the disease was contagious, and that the plaintiff's sheep would thereby be injured, he would be liable if the plaintiff's sheep were thereby infected." And he further charged them, in substance, that any neglect on the part of the plaintiff either in believing what the defendant had told him, or in putting his sheep on the premises after the facts came to his knowledge, as disclosed in the case, then and in that case, the defendant was not liable. The rights of the defendant were fully protected by this charge, if the plaintiff had a right of action at all, under the third count of his declaration.

So, if we are right thus far, the only remaining question to be considered is, whether this is one of those injuries for which the law affords relief. The foundation of the defendant's liability rests on the fact, that he was not the owner of the premises, but temporarily in the possession of them. A man would have the right to convert his own house into a hospital for the treatment of patients affected with contagious diseases, if it were sufficiently removed from his neighbors, but we submit that a tenant, whose term...