Farrar v. Andrew Peterson & Co.

• Decision Date: 18 March 1913
• Citation: 130 P. 753,72 Wash. 482
• Court: Washington Supreme Court
• Parties: FARRAR v. ANDREW PETERSON & CO.

130 P. 753

72 Wash. 482

FARRAR v. ANDREW PETERSON & CO.

Supreme Court of Washington

March 18, 1913

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by C. P. Farrar against Andrew Peterson & Co. Judgment for plaintiff, and defendant appeals. Reversed, with directions to dismiss.

Herchmer Johnston, of Seattle, for appellant.

PARKER J.

This is an action to recover damages which the plaintiff alleges resulted to him from the defendant placing in the plaintiff's barn a horse afflicted with the contagious disease called glanders, and thereby causing the barn to become so infected that it was destroyed by the public authorities. A trial before the court without a jury resulted in findings and judgment in favor of the plaintiff in the sum of $226.50, from which the defendant has appealed.

Appellant had a street grading contract with the city of Seattle, upon which it was working a large number of horses. The respondent had a corral and barn near where this work was being carried on, and at the request of appellant's foreman permitted their use, to place a few of the horses in. It is evident that the purpose on the part of the foreman was to have a suitable place in which to put such of the horses as might become injured upon the work, or otherwise temporarily incapacitated. Respondent alleges in his complaint that permission was given to the foreman to occupy the corral 'and including a barn thereon, for the purpose of permitting certain alleged injured horses to run therein and to be sheltered in said barn.' The substance of all of the evidence given in behalf of the respondent tending to show any agreed restricted use of the barn is contained in his own testimony, as follows: 'Q. State to the court the circumstances of this permission to use that barn? * * * A. He [the foreman] said he would like to have the use of the barn for three or four horses, and wanted the barn so in case it should rain they could go under cover. Q. Did he refer to any special horses? A. No. Q. What did he say was the matter with the horses? A. Well, he said the horses had been hurt on the grading. * * * Q. To whom did you give that permission to use the barn? A. Mr. Espeland. Q. What was his position with the company? A. He was foreman.' On the following day, about July 1, 1911, one of the horses became indisposed, 'off his feed,' as termed by some of the witnesses, but apparently not seriously ill. It was then placed in respondent's corral and barn. It is not alleged in the complaint, nor is there any evidence whatever tending to show, that any of the officers or servants of appellant had any knowledge or reason to believe that the horse at that time was afflicted with glanders. About a week later, the horse not improving, a veterinary surgeon was called to attend it, and even then the surgeon did not discover that the horse was afflicted with glanders. A few days thereafter it was so discovered, when the barn was quarantined by the public authorities, and a short time thereafter the public authorities, deeming it impractical to disinfect the barn, caused it to be burned, resulting in plaintiff's damage for which he seeks recovery from appellant. Not only is there no allegation or proof of knowledge which could be imputed to appellant that the horse was afflicted with glanders when placed in the barn, nor for more than a week thereafter, but there is quite convincing affirmative evidence that appellant had no such knowledge.

An examination of the authorities convinces us that the undisputed facts shown by this record do not render appellant legally liable for respondent's damage resulting from the destruction of his barn. This court has had occasion to consider the question of damages resulting from the...