Eshleman v. Union Stock Yards Co.

• Decision Date: 02 June 1908
• Docket Number: 263
• Citation: 222 Pa. 20,70 A. 899
• Parties: Eshleman, Appellant, v. Union Stock Yards Company
• Court: Pennsylvania Supreme Court

70 A. 899

222 Pa. 20

Eshleman, Appellant, v. Union Stock Yards Company

No. 263

Supreme Court of Pennsylvania

June 2, 1908

Argued May 18, 1908 [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal, No. 263, Jan. T., 1907, by plaintiff, from order of C.P. Lancaster Co., Jan. T., 1905, No. 8, refusing to take off nonsuit in case of Samuel Eshleman v. The Union Stock Yards Company. Affirmed.

Trespass to recover damages for death of cattle from Texas fever.

At the trial the court entered a compulsory nonsuit which it subsequently refused to take off, LANDIS, P.J., filing the following opinion:

This action for damages by the plaintiff rests upon the basis that the defendant company permitted cattle with Texas ticks upon them to be placed in its yards, and thereby Texas fever was communicated to cattle which he subsequently purchased, with the results that some of them died. The stock yards and cattle pens -- which are owned by the Pennsylvania Railroad Company, but are leased by it to the defendant company -- are located along the line of the Pennsylvania Railroad, adjacent to the city of Lancaster. These yards are used by shippers and wholesale dealers in cattle, and the plaintiff has been accustomed, for some time, to buy his stock there. Martin H. Flickinger was one of these wholesale dealers who did business at these yards and certain pens, numbered Nos. 59 and 31, were generally used for his cattle and were known as his pens. On Saturday evening, June 21, 1904, two carloads of cattle, containing forty-four head, from St. Louis, came to the stock yards. They were billed to Philadelphia, and were marked, "Off at Lancaster to feed and water." They had been purchased for slaughter purposes. These cattle were taken from the cars and placed in the rear of these so-called Flickinger pens, where they remained overnight. On the following morning (Sunday), they were moved to the lower part of the yards, to what is called the "willow" pen. Flickinger, receiving notice of their arrival at the stock yards, came to Lancaster on Monday morning, and directed the superintendent of the yard to ship the cattle to their destination. Upon seeing them he said: "I see they are tick cattle. . . . Take caution with them; they are not lawful to handle, unless you clean the pens right, and do the right thing." They were taken from the willow pen, placed in cars and shipped to Reading, where they were killed at the Reading abattoir. There was no evidence of any mark upon the cars which brought them to Lancaster, but it was testified that the manifest showed that they were southern cattle, and it was proven that there were ticks upon them. After they were unloaded at Lancaster, fat cattle of F. C. Musser were placed in the same cars and shipped to New York.

On August 3, 1904, Flickinger sold to the plaintiff thirteen head of butcher cattle. He had purchased them from S.B. Hedgen & Company, of Pittsburg, on August 1. On August 10, 1904, he sold to the plaintiff a second lot of ten or eleven cattle, and August 17 a third lot of nine head. All of these cattle were apparently placed, with his consent, in, and were sold out of, pens Nos. 59 and 31. The second lot was bought from a man by the name of Hoover, who also deals at the yards, and were taken from Hoover's pens and placed in Flickinger's pens, and the third lot was bought from Musser. Flickinger stated that, while he did not examine the cattle particularly for ticks, they seemed to him at the time he sold them to be clean and healthy; and Musser says that the cattle he sold to Flickinger were apparently healthy cattle. The cattle were bought by Eshleman in the morning, taken out and weighed, and put back into the Flickinger pens until afternoon or evening, and then driven away by Eshleman. Eshleman kept the first lot about two weeks in pasture. He then sold eight of them to Daniel S. Leib, but only delivered seven. The one he retained died a few days after. Six of those thus sold to Leib died and were replaced with four other cattle, and Eshleman promised to replace the other two. Of the second lot all died. Some had been sold outright by Eshleman to other parties and paid for; but three had been contracted to Martin Doster, and four to a Mr. Hummer. Of the third lot two died, one of which was contracted to John Ruhle. It was shown that there were Texas ticks upon all the cattle that died.

The evidence showed that Texas or southern cattle have at times upon them a parasite which is called a "tick." To the southern cattle it is harmless. Being brought north by southern cattle, after it is in this country, it falls from the animals to the ground and lays its eggs in grass or other material. The eggs are hatched out, the young ticks crawl on to the domestic cattle, and these cattle become infected by the tick biting them. The original tick, after it lays its eggs, dies, and no harm can result from it; but it is the progeny of the dead tick that causes the infection and produces Texas fever in the domestic cattle. For the hatching of the eggs and for the process of incubation of the disease about thirty days is the minimum time. One witness said that it takes twenty-eight or thirty days until the young tick is able to crawl on the animal, and in about ten days thereafter symptoms of the disease appear. Although the plaintiff's statement alleges that the defendant "carelessly and negligently, and without having first properly disinfected and cleaned said pens, lanes and alleys, caused and permitted other cattle not infected with said germ, parasite or tick, . . . to be driven through the aforesaid lanes and alleys and to be confined in the same pens in which the said infected cattle had been confined," there was no proof presented that the pens, lanes, alleys had not been disinfected, nor was there any evidence that they had not been cleaned. There was no proof that any ticks were found by anyone in these pens, Nos. 59 and 31, or upon any cattle while in the pens. The inference is made that, because, on June 21 and 22, the cattle of Flickinger, which had ticks upon them, were overnight in the rear of these two pens, and were afterwards driven through the yard to the willow pen, and thence to the cars, therefore the plaintiff's cattle, placed in the same pens from August 3 to 17, or driven through the yard, became infected, by reason of which some of them died. These were the facts upon which the plaintiff insists that the defendant company is liable for the loss sustained. But two questions seem to be involved in this case: The first is, whether there was any carelessness or negligence proved against the defendant company; and the second is, whether, even this be so, the plaintiff is in a situation to recover damages from the defendant company.

There was no evidence presented that the cattle which were purchased by Flickinger at St. Louis in June, 1904, were Texas cattle. All that was elucidated upon that subject was, that, in the manifest, they were marked as southern cattle. They may, or may not, have come from an infected district. The principle, therefore, which has been held by some courts and denied by others, that judicial notice will be taken of the fact that Texas cattle have some contagious or infectious disease communicable to native cattle, cannot be invoked. There is no presumption in this case against the defendant.

The cattle were consigned to Philadelphia, but were to be left off at Lancaster to feed. This was done on the evening of Saturday, June 21. The railroad company, under the act of congress of March 3, 1873, chap. 252, sec. 1, was not permitted to confine in its cars cattle carried or transported from one state to another for a longer period than twenty-eight consecutive hours, without unloading the same for rest, water and feeding for a period of at least five consecutive hours, unless prevented by storm or other accidental causes. The unloading of the cattle, therefore, at Lancaster, for the purpose of watering and feeding them, was proper, and no liability attaches on that account.

There is no statute in Pennsylvania relating to Texas fever as such, though there are laws preventing the sale of diseased cattle, and the "State Livestock Sanitary Board" is authorized to prohibit their importation and to make and enforce rules and regulations in relation to contagious or infectious diseases as may from time to time be required. There is no evidence that any rules have been adopted which affect this controversy. There has been no act of congress presented that imposes liability, though certain rules of the United States bureau of animal industry were offered and admitted in this case. These rules were supposed to have been authorized by the act of congress, known as the "Animal Industry Act," of May 29, 1884, chapter 60. By the first section of that act, the commissioner of agriculture was directed to organize in his department a bureau of animal industry, to appoint a chief thereof, who should be a competent veterinary surgeon and whose duty it should be to investigate and report upon the condition of the domestic animals of the United States, their protection and use, and also to inquire into and report the causes of contagious infectious and communicable diseases among them, and the means for the prevention and cure of the same, and to collect such information on these subjects as should be valuable to the agricultural and commercial interests of the country; and by section 3, it was made the duty of the commissioner to prepare such rules and regulations as he might deem necessary for the speedy and effectual suppression and extirpation of said diseases, and to certify such rules and regulations to the executive authority of each state...