Grimes v. Eddy
Decision Date | 22 December 1894 |
Citation | 28 S.W. 756,126 Mo. 168 |
Parties | Grimes v. Eddy et al., Receivers, Appellants |
Court | Missouri Supreme Court |
Appeal from Monroe Circuit Court. -- Hon. T. H. Bacon, Judge.
Affirmed as to first count. Reversed as to second count.
""Jackson & Montgomery for appellants.
(1) The court erred in not sustaining the defendant's demurrer under the first count in the petition, because the evidence wholly failed to sustain the averments of the petition in these three particulars: ""First. That the cattle transported and alleged to have been permitted to escape etc., were infected with a deadly disease. ""Second. That the defendants knew the fact. ""Railroad v. Finley, 16 P. 956; Shearman and Redf on Neg. [3 Ed.] sec. 193; ""Patee v. Adams, 14 P 505; ""Hawks v. Lock, 139 Mass. 205; ""Coyle v. Conway, 35 Mo.App. 495; ""Bradford v. Floyd, 80 Mo. 212. ""Third. That they negligently permitted the cattle to escape from their custody or control. (2) The court erred in admitting evidence as to universal knowledge of the fact that all Texas cattle were diseased, or communicate Texas fever to all native cattle. ""State v. Hays, 78 Mo. 318; 1 Greenleaf on Ev., sec. 6""a; ""State v. Barber, 136 U.S. 459. (3) The court erred in refusing to give the instructions prayed by defendants and refused. See authorities cited ""supra. (4) The court erred in giving the instructions given of its own motion. See authorities cited ""supra. (5) Upon the second count the appellants contend the same errors were committed as those upon the first count, and to which attention has already been called. The act is unconstitutional, as being a regulation of commerce, and void. ""State v. Barber, 136 U.S. 457; ""Leisy v. Hardin, 135 U.S. 119; ""Cooley v. Port Wardens, 12 How. 299; ""Cardwell v. Bridge Co., 113 U.S. 205; ""Wilton v. Missouri, 91 U.S. 275; ""Hall v. DeCuir, 95 U.S. 485; ""Sinnot v. Davenport, 22 How. 227; ""Foster v. Davenport, 22 How. 244; ""The License cases, 5 How. 504; ""Brimmer v. Rebman, 138 U.S. 863; ""Wilkerson v. Rahrer, 11 S.Ct. 867; ""Mail S. Co. v. Pennsylvania, 122 U.S. 1204; ""Henderson v. Wickham, 92 U.S. 549; ""Stanley v. Railroad, 100 Mo. 438; ""Connell v. Tel. Co., 108 Mo. 463.
""R. N. Bodine and ""Stocking & Alexander for respondent.
(1) Anyone who allows diseased or infected animals to run at large, knowing them to be diseased or infected, is liable for the damage or loss which such animals may cause by reason of such disease or infection. ""Bradford v. Floyd, 80 Mo. 207; ""Coyle v. Conway, 35 Mo.App. 490; ""Railroad v. Finley, 38 Kan. 550; ""Pattee v. Adams, 37 Kan. 133; ""Regina v. Huson, 1 Dean. 24; ""Mills v. Railroad, 2 Rob. (N. Y.) 326; ""Fisher v. Clark, 41 Barb. (N. Y.) 329; ""Walker v. Herron, 22 Tex. 55; Cooley on Torts, p. 343; Addison on Torts, sec. 261; ""Hill v. Applegate, 40 Kan. 31. (2) Much more, if defendants had in their care or control animals known to them to be affected with a contagious disease, and negligently allowed them to wander upon the streets of Paris, by reason of which plaintiff suffered damage, then defendants are liable therefor. See authorities cited ""supra. (3) The question of negligence was submitted to the jury under proper instructions, and their finding upon this fact is conclusive, there being ample evidence to support it. (4) Evidence of the general notoriety of the fact that all Texas cattle are affected or infected with what is called Texas fever, and will impart the Texas fever to native cattle under certain conditions, is competent to show that defendants had knowledge of that fact. ""Benoist v. Darby, 12 Mo. 196, ""Dickinson v. Chrisman, 28 Mo. 134; ""Conover v. Berdine, 69 Mo. 125; ""Gordon v. Ritenour, 87 Mo. 54; ""Brander v. Feraday, 16 L. R. A. 296; ""Lee v. Kilburn, 3 Gray, 594; ""Carpenter v. Leonard, 3 Allen, 32. (5) The statute upon which the cause of action in the second count is based is constitutional. ""Railroad v. Husen, 95 U.S. 465; ""Kimmish v. Ball, 129 U.S. 217; ""Minnesota v. Barber, 136 U.S. 313; ""Leisy v. Harding, 135 U.S. 100; ""Brown v. Railroad, 125 U.S. 465; ""Patterson v. Kentucky, 97 U.S. 501; ""Railroad v. Finley, 38 Kan. 550; ""Brown v. Maryland, 12 Wheat. 445; ""License cases, 5 Howard, 589; ""Gilman v. Philadelphia, 70 U.S. 713. (6) At least that portion of said statute under which plaintiff claims, to wit, the clause against allowing diseased or distempered animals to run at large, is constitutional. ""Kimmish v. Ball, 120 U.S. 217; ""Allen v. Louisiana, 103 U.S. 80; ""Railroad v. Keokuk, 95 U.S. 80.
OPINION
In Banc.
This is an action to recover the value of a cow alleged to have died from Texas fever contracted from cattle shipped over the Missouri, Kansas & Texas Railway, while the same was being operated by the defendants as receivers. The suit was commenced before a justice of the peace in Monroe county, and appealed to the circuit court. The statement is in two counts, and, leaving off the caption, is as follows:
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