Garff v. Smith

• Decision Date: 21 August 1906
• Docket Number: 1741
• Citation: 31 Utah 102,86 P. 772
• Court: Utah Supreme Court
• Parties: GARFF v. SMITH

86 P. 772

31 Utah 102

GARFF v. SMITH

No. 1741

Supreme Court of Utah

August 21, 1906

APPEAL from District Court, Tooele County; C. W. Morse, Judge.

Action by Peter N. Garff against Jesse M. Smith and others. From a judgment in favor of plaintiff against defendant James P Sharp, he appeals.

REVERSED.

M. A Breeden and Street & Bramel for appellant.

APPELLANT'S POINTS.

Sheep inspection and quarantine are clearly within the police powers of the state and summary remedies in that behalf are valid. (Rasmussen v. Idaho, 181 U.S. 198.)

"A public officer is not liable to an action if he falls into error where the act to be done is not merely a ministerial one, but is one in relation to which it is his duty to exercise judgment and discretion--even although an individual may suffer by his mistake. A contrary principle would be pregnant with the greatest mischiefs." (Kendall v Stokes, 3 Howard 87; Wilkes v. Dinsman, 7 Howard 89; Bailey v. Berkey, 81 F. 737; Crowell v. McFadden, 8 Cranch 94; Spalding v. Vilas, 161 U.S. 483; Otis v. Watkins, 9 Cranch 339; Downer v. Lent, 6 Cal. 94; Porter v. Haight, 45 Calif. 631; Ballerino v. Mason, 83 Calif. 447; Tarpon v. Booth, 56 Calif. 65; 23 Am. & Eng. Ency Law, pp. 375, 377; Throop, Public Officers, secs. 713, 715; Mechem, Public Officers, secs. 639, 640; Schooler v. Arrington, 81 S.W. 468; Palowski v. Jenks, 73 N.W. 238; Lecourt v. Glaster, 23 So. 463; Amperse v. Winslow, 42 N.W. 823; Gould v. Hammond, 10 F. Cas. 874; Seaman v. Potten, 2 Caines [N.Y.] 312; Raymond v. Fish [Conn.], 50 Am. Rep. 3; 23 Am. & Eng. Ency. Law [2 Ed.], pp. 375, 377.)

"But to render . . . an officer acting in a capacity in its nature judicial, liable, it must be shown that his decisions were not merely erroneous, but that he acted from a spirit of willfulness, corruption and malice; in other words, that his action was knowingly wrongful, and not according to his honest convictions in respect of his duty." (Pike v. Megoun, 44 Mo. 491; Tiedt v. Carstemen, 64 Iowa 131, 19 N.W. 885; State v. Thomas, 88 Tenn. 491; Porter v. Haight, 45 Cal. 631; Ballerino v. Mason, 83 Cal. 447; Schooler v. Arlington, 81 S.W. 468; Chamberlain v. Clayton, 9 N.W. 237, 56 Iowa 331, 41 Am. Rep. 101.)

Frick, Edwards & Smith for respondent.

RESPONDENT'S POINTS.

"Where a power rests in judgment or discretion so that it is of a judicial nature or character, but does not involve the exercise of the functions of a judge, or is conferred upon an officer other than a judicial officer, the expression used is generally quasi judicial. The officer may not in strictness be a judge, still if his powers are discretionary to be exerted or withheld according to his own view of what is necessary and proper, they are in their nature judicial." (Throop on Public Officers, 533-4; Bair v. Strock, 74 P. 69. Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65; Mechem on Public Officers, 637; Bishop on Non-Contract Law, 785-6; Throop on Public Officers, 533-4; State ex rel. v. Meier, 143 Mo. 440; Hirks v. Dorn, 42 N.Y. 47 to 52; Pennington v. Streight, 54 Ind. 376; McCord v. Heigh, 24 Iowa 342.)

It therefore was the duty of these officers in fixing the limits within which such sheep had to be kept and in determining the place where these limits were fixed to see to it that such sheep could maintain life by obtaining sufficient food and drink within the limits so fixed. (Aaron v. Broiles, 64 Tex. 316, 53 Am. Rep. 764; Beers v. Board of Health, 35 La. Ann. 1132, 48 Am. Rep. 256.)

STRAUP, J. BARTCH, C. J., and McCARTY, J., concur.

OPINION

STRAUP, J.

The respondent, plaintiff below, brought this action against Jesse M. Smith, the state sheep inspector, James P. Sharp, his deputy, and others, his bondsmen, to recover damages alleged to have been sustained through the negligence of defendants Smith and Sharp in quarantining sheep belonging to plaintiff and his assignors. As to the defendant Smith and his bondsmen, the court took the case from the jury. Upon the issues submitted the jury rendered a verdict in favor of plaintiff and against defendant Sharp in the sum of $ 850. From the judgment entered upon the verdict against him, the defendant Sharp appeals.

The complaint, so far as material, alleges that Sharp, by virtue of his office, inspected and quarantined the sheep of plaintiff and his assignors, defined the place and limits of quarantine, and required plaintiff and his assignors to confine and keep the sheep within such limits; that in fixing the place and limits the defendant Sharp was guilty of negligence and acted without due regard for the rights of plaintiff and his assignors in the particular that he selected and designated a place where there was no sufficient or proper food for the sheep, and where there were large quantities of greasewood, which, if eaten by sheep in considerable quantities and by drinking water thereafter, would make them sick and cause them to die; and that, no other food being obtainable, some of plaintiff's sheep ate large quantities of greasewood and drank large and excessive amounts of water, which caused their death. There are no allegations in the complaint, nor is there any evidence showing, that either of the defendants knew, or that it was common knowledge, that it is harmful or injurious to sheep to eat greasewood and to drink water thereafter, nor that the defendants, in the performance of their duty or otherwise, in defining the limits and designating the place, or in any other particular, acted with malice or wantonness, or that they acted beyond the scope of their authority, or without or in excess of their jurisdiction. The evidence shows that plaintiff and his assignors, in the latter part of April, 1903, were driving a herd of about 2,500 head of sheep, some of which were affected with an infectious disease called "scab," from the West, through Tooele county, to Draper, in Salt Lake county, and to Woodland, in Summit county. They stopped in Tooele county several days for shearing, after which they proceeded on their way with the sheep. When about three or four miles from the shearing camp, or corrals, they were intercepted by defendant Sharp, who inspected the sheep, found them diseased, quarantined them within limits of about four miles square, and directed that they be confined within such limits. The evidence on behalf of plaintiff tends to show that there was no grass or other vegetation within the quarantine limits, except sagebrush, shadscale, greasewood, and, at places, small cedars. The plaintiff and his assignors insisted that they be permitted to proceed, for the reasons, as stated by them to Sharp; that they had ground leased for lambing at Draper and Woodland, and that there was no sufficient food for the sheep at the place of quarantine. Sharp replied that he could not give his consent to permit them to go on, and told them to see Mr. Smith. He went with them to a nearby place to telephone to Smith. Not being able to communicate with him, they went to Salt Lake City. Failing there to see him, they returned to the sheep. With Sharp's permission, the sheep were then taken back to the foothills and without the limits of the quarantine. The sheep were confined in quarantine for a period of only twenty-seven hours. Because of the confinement of the sheep during this period at an improper place, on account of the want of proper food and pasture, the alleged resulting damages are claimed.

From the testimony of witnesses for plaintiff it is claimed that he and his assignors lost about 1,500 head of sheep as a result of the twenty-seven hours of quarantine, because of the sheep eating a large amount of greasewood and drinking water thereafter. But the evidence on behalf of plaintiff also shows that the sheep had passed an unusually hard winter; that a cold snap had set in immediately after shearing; that before the quarantine the sheep had been driven along and kept about places of growing greasewood; that before the quarantine quite a number of sheep had died en route, and about the shearing camp, but, as claimed by plaintiff, from cold and storms; and, while it is testified to that the eating of greasewood and the drinking of water by the sheep caused their death, it is not very satisfactorily made to appear that their death was caused from the eating of greasewood during the twenty-seven hours as a consequence of the quarantine. The appellant contends (1) that the evidence is insufficient to charge him with negligence; (2) that in inspecting and quarantining the sheep, and in defining the place and limits of quarantine, he, as a public officer in the performance of a public duty, acted in a quasi judicial capacity within the powers and jurisdiction conferred by law, and that, if he can at all be made liable in a civil action, it is necessary to allege and prove that he acted with malice, or through fraud or corruption; and (3) that because of a want of such allegations and proofs the trial court erred in overruling his motion to direct a verdict in his favor and in overruling his motion for a new trial.

In view of the principles of law applicable to this kind of a case it is not necessary to determine whether the evidence is sufficient to show even negligence on the part of the appellant, resulting from his acts, complained of, defining the place and limits of quarantine; the only acts of negligence attempted to be proved and to which the evidence relates. All the authorities agree that a public officer acting judicially, or in a quasi...