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

28 S.W. 756

126 Mo. 168

Grimes v. Eddy et al., Receivers, Appellants

Supreme Court of Missouri

December 22, 1894

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.

Burgess, J. Barclay, J., concurs in the result.

OPINION

In Banc.

Burgess J.

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:

"Plaintiff says that the Missouri, Kansas & Texas Railway Company was on and after the day hereinafter mentioned, and now is, a railroad corporation organized under the laws of the state of Kansas, and that at the time hereinafter mentioned, defendants, Geo. A. Eddy and H. C. Cross, were, and now are, receivers of the said Missouri, Kansas & Texas Railway Company, appointed by the United States circuit court for the eighth judicial circuit, and as such receivers, were, at said date, and now are, in possession of the railroad of said corporation, known as the Missouri, Kansas & Texas railroad, running through the county of Monroe in the state of Missouri, and as said receivers, engaged in running and operating the same, and doing a general railroad business over and on said railroad.

"Plaintiff states that on or about the day of May, 1890, defendants, as such receivers, were engaged in transporting upon said railroad, and had upon their cars, while so transporting through Monroe county, Missouri, a large number of Texas cattle, said cattle being at said time infected with a deadly disease known as Texas fever; that all Texas cattle during the spring and summer months, whether perceptibly affected by said disease or not, communicate the same to all cattle raised in Missouri, passing over land previously passed over by such Texas cattle; that defendants at said time well knew that said cattle were Texas cattle, that they were infected with said disease and of the liability aforesaid to communicate said disease to Missouri raised cattle by leaving the germs of said disease upon the ground over which they traveled, and and that defendants as such receivers, so knowing, and while said Texas cattle were by them being transported across Monroe county, Missouri, wrongfully and negligently, by their servants and employees permitted said Texas cattle, so infected with said disease and so liable to communicate said disease as aforesaid, whether apparently affected themselves or not, to escape from the control and custody of said defendants and run at large over a large area of land in Monroe county, Missouri, including public highways, for a space of twelve hours or more; and that plaintiff then and there being the owner of a certain Missouri raised cow of the value of $ 125, the same, without any fault or negligence of plaintiff, passed over the ground over which said Texas cattle had passed as aforesaid, and thereby the said disease of Texas fever was communicated to plaintiff's cow, whereby she sickened and died, so that she was wholly lost to plaintiff, whereby he was damaged in the sum of $ 125, for which he asks judgment.

"Plaintiff for another cause of action against defendants, as receivers as aforesaid, states that the Missouri, Kansas & Texas Railway Company was, on and after the days hereinafter mentioned, and now is, a railroad corporation organized under the laws of the state of Kansas, and at the time hereinafter mentioned defendants were, and now are, the receivers of the said Missouri, Kansas & Texas Railway Company, appointed by the United States circuit court for the eighth judicial circuit, and, as such receivers, were, at said dates, and now are, in possession of the railroad of said corporation known as the Missouri, Kansas & Texas railroad, running through the county of Monroe in the state of Missouri, and as such receivers, engaged in running and operating the same and doing a general railroad business over and on said railroad. Plaintiff states that on or about the day of May, 1890, defendants, as such receivers, were engaged in transporting upon said railroad, and had upon their cars while so transporting through Monroe county, Missouri, a large number of Texas cattle, at said time being affected with the disease known as Texas fever, that defendant at said time well knew that said cattle were Texas cattle, and were affected with Texas fever; that said cattle, while being so transported by defendants, were permitted by defendants to escape from the cars in said Monroe county, and to run at large over a large area of land in said county along the route and in the vicinity of said railroad, including public highways, for the space of twelve hours or more, and that plaintiff then and there being the owner of a certain native Missouri raised cow of the value of $ 125, the same, without any fault or negligence of the part of the plaintiff, passed over the ground over which said Texas cattle had passed as aforesaid, and thereby the said disease of Texas fever was communicated to plaintiff's said cow, whereby she sickened and died, so that she was wholly lost to plaintiff, whereby he was damaged in the sum of $ 125, wherefore plaintiff says...