Grayson v. Lynch

• Decision Date: 25 May 1896
• Docket Number: No. 290,290
• Parties: GRAYSON et al. v. LYNCH et al
• Court: U.S. Supreme Court

163 U.S. 468

16 S.Ct. 1064

41 L.Ed. 230

GRAYSON et al.

v LYNCH et al.

No. 290.

May 25, 1896.

This was an action originally begun in the district court for the Third judicial district, for the county of Dona Ana, N. M., by the appellees, constituting the firm of Lynch Bros., against the appellants, who are members of the firm of Grayson & Co., for loss and damage to a herd of cattle by a disease known as 'Texas cattle fever,' claimed to have been communicated to them by certain cattle owned by defendants, which had been shipped from infected districts in Texas, and permitted to roam over plaintiffs' range. There were two counts in the declaration, alleging the communication of the disease in two different counties; but in other respects the two counts were alike.

The declaration alleged, in substance: That plaintiffs, being in the peaceable possession of a certain cattle range suitable for pasturage, watering and raising cattle, had pastured and grazed on said lands a large number of meat cattle, which were entirely healthy, and free from any contagious or infectious disease, all of which the defendants knew; and that defendants negligently and willfully, against the remonstrance of the plaintiffs, turned in upon said lands and premises, among plaintiffs' cattle, a large number of their cattle infected with a contagious and fatal disease known as 'Texas cattle fever.' That defendants knew that their cattle were so infected, and were liable to communicate the disease to plaintiffs' cattle; by reason whereof, and through the carelessness and negligence of the defendants, the disease was communicated to plaintiffs' cattle, 400 of which died, and the remainder, namely, 100 head, were rendered worthless in consequence of such disease.

Defendants interposed a general plea of not guilty, and, a jury being waived by an agreement in writing, the case was tried by the district court, which, having heard the evidence and arguments of counsel, found the issue in favor of the plaintiffs, and entered a judgment against the defendants for the sum of $5,200 damages, together with their costs.

Thereupon defendants, after unsuccessfully moving for a new trial, prayed an appeal to the supreme court of the territory, which made a finding of facts substantially to the effect that there were in the state of Texas certain districts which were permanently infected with germs of splenetic fever, Texas fever, or Texas cattle fever, and that Oak and Bee counties were a part of such infected districts; that a part of defendants' cattle were shipped by them from Oak and Bee counties, nd unloaded at Hatch station, in the territory of New Mexico, and were from there driven on foot, along the public road, across the range of the plaintiffs to the range of the defendants, adjoining plaintiffs' range, where they were turned loose to graze with other cattle upon defendants' range; that defendants were notified by plaintiffs, and thus had knowledge of the probable existence of such disease in said infected districts and said counties at the time they drove their said cattle from said counties across plaintiffs' range; that defendants' cattle brought with them the germs of an infections and communicable disease known as 'splenetic' or 'Texas fever,' and communicated such disease to plaintiffs' cattle, either on the public road, on plaintiffs' range, or on defendants' range, and plaintiffs' cattle became infected with the germs of such disease, and thereby sickened, and many of them died, and the plaintiffs sustained damage thereby to the amount of $5,200; that before defendants' cattle were driven across plaintiffs' range, plaintiffs notified defendants that their cattle would be liable to communicate Texas fever to plaintiffs', and requested them to abstain from driving their cattle across plaintiffs' range; that afterwards, and notwithstanding plaintiffs' request, defend- ants drove their said cattle across plaintiffs' range, in the manner heretofore stated, by reason of which said disease became communicated to plaintiffs' cattle. 25 Pac. 992, 32 Pac. 149.

Upon this finding, the court ordered a judgment to be entered affirming the judgment of the court below, and allowed an appeal to this court.

Mr. Justice Field, dissenting.

T. B. Catron, for appellants.

S. B. Newcomb and S. M. Arnell, for appellees.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

In this case, which was tried by the court without a jury, there are 53 assignments of error taken to the introduction of much of the testimony and to the finding of the principal facts. As usual, when the assignments are so numerous, it will be necessary to consider but few of them.

1. Thirteen of these assignments are taken in different form to the action of the court in holding that, upon a trial by the court, the admission of improper, incompetent, irrelevant, or immaterial evidence was no cause for reversal; that in such case, on appeal, the court will give no weight to such testimony in the determination of such appeal, but will not reverse the judgment because it was admitted, unless it appears that the court in making its decision relied upon such irrelevant evidence; that a finding of facts in a case at law, tried without a jury, is conclusive, where there is sufficient evidence to found it upon, even though the evidence be conflicting; in refusing to pass upon questions of law and fact apparent upon the face of the record, and in refusing to review the cause and pass upon the evidence as upon a hearing de novo.

The position of the defendants in this connection is that, whatever may be the practice in the federal courts under the Revised Statutes, or of the courts in other territories, the laws of New Mexico require the supreme court, in passing upon cases tried in the court below without a jury, practically to retry the case upon the law and facts, as though it were an appeal in equity.

In support of this our attention is called to three statutes upon the subject of hearings in the supreme court, by one of which (Comp. Laws, § 2060) 'trial by jury may be waived by the several parties to any issue of fact in the following cases: (1) By suffering default by failing to appear at the trial; (2) by written consent in person or by attorney, filed with the clerk'; and by the second of which (section 2190) 'the supreme court, in appeals or writs of error, shall examine the record, and on the facts therein contained alone shall award a new trial, reverse or affirm the judgment of the district court, or give uch other judgment as shall be agreeable to law.' There is clearly nothing in these statutes which lays down a different rule from that ordinarily pursued in appellate courts. If the case be tried by jury, and reviewed upon writ of error, the power of the appellate court is limited to affirming the judgment or reversing it for errors apparent upon the record, and remanding it for a new trial, as specified in this section. If it be an appeal in equity, the court retries the case upon the evidence in the court below, and gives such judgment as may be agreeable to law. No mention is made in this section of common-law cases tried without a jury, and we perceive no necessity for our supplying the omission. So far as this class of cases is concerned, they are left to be determined by the legal principles applicable to them in other jurisdictions; and, as regards the federal practice, this court has held in a series of cases that the special finding of facts referred to in the acts allowing parties to submit issues of fact in civil cases to be tried and determined by the court is not a mere report of the evidence, but a finding of those ultimate facts upon which the law must determine the rights of the parties; and, if the findings of fact be general, only such rulings of the court in the progress of the trial can be reversed as are presented by a bill of exceptions, and that in such cases a bill of exceptions cannot be used to bring up the whole testimony for review any more than in a trial by jury. Morris v. Jackson, 9 Wall. 125; Kearney v. Case, 12 Wall 275; Miller v. Insurance Co., Id. 385; Insurance Co. v. Folsom, 18 Wall. 237; Insurance Co. v. Sea, 21 Wall. 158; Jennisons v. Leonard, Id. 302; Tyng v. Grinnell, 92 U. S. 467; Insurance Co. v. Boon, 95 U. S. 117; The Abbotsford, 98 U. S. 440.

So, too, in cases brought here by appeal from the supreme courts of the territories, we have several times held that we cannot consider the weight or the sufficiency of the evidence, but only whether the facts found by the court below support the judgment, and whether there was any error in rulings, duly excepted to, upon the admission or rejection of evidence. Improvement Co. v. Bradbury, 132 U. S. 509, 10 Sup. Ct. 177; San Pedro & Canon del Agua Co. v. U. S., 146 U. S. 120, 13 Sup. Ct. 94; Smith v. Gale, 144 U. S. 509, 12 Sup. Ct. 674; Mammoth Min. Co. v. Salt Lake Foundry & Mach. Co., 151 U. S. 447, 14 Sup. Ct. 384.

By the act of April 7, 1874 (18 Stat. 27), the appellate jurisdiction of this court 'over the judgments and decrees of the territorial courts in cases of trial by jury shall be exercised by writ of error, and in all other cases by appeal,' with a proviso 'that on appeal, instead of the evidence at large, a statement of the facts in the case in the nature of a special verdict, and also the rulings of the court on the admission or rejection of evidence, when excepted to, shall be made and certified by the court below, and transmitted to the supreme court, together with a transcript of the proceedings and judgment or decree.' It was said in Improvement Co. v. Bradbury, 132 U. S. 509, 513, 10 Sup. Ct. 177, that the necessary effect of this enactment was that no judgment or decree of the highest court of a territory could be reviewed by this court in matter of fact, but only in matter of law; or, as was said by Chief...