Herrick v. Jude P. Gary.

• Decision Date: 30 September 1876
• Citation: 83 Ill. 85,1876 WL 10293
• Parties: JOHN H. HERRICKv.JUDE P. GARY.
• Court: Illinois Supreme Court

83 Ill. 85

1876 WL 10293 (Ill.)

JOHN H. HERRICK

v.JUDE P. GARY.

Supreme Court of Illinois.

September Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of De Kalb county; the Hon. THEODORE D. MURPHY, Judge, presiding.

Mr. CHARLES WHEATON, for the appellant.

Messrs. E. H. & N. E. GARY, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was case, in the Du Page circuit court, brought by John H. Herrick, plaintiff, and against Jude P. Gary, defendant, and the venue changed to the county of De Kalb. The declaration contained four counts, the first three counts substantially the same, each alleging the plaintiff's possession of five hundred sheep, of value, etc.; that his farm adjoined the farm of the defendant, whose duty it was to keep up his half of the division fence; that plaintiff kept up his half, but defendant suffered his half to remain down, so that free access could be had by sheep from defendant's premises to the premises of the plaintiff; that defendant, well knowing the premises, was the owner of a large number of sheep affected with a contagious disease known as ““scab,” and with another contagious disease known as “foot-rot;” and defendant, knowing his sheep were so affected, kept them upon his field so adjoining the field of plaintiff where plaintiff kept his sheep, and where the division fence was down, so that they had access to plaintiff's sheep, whereby the sheep of plaintiff became affected by the defendant's diseased sheep--the defendant knowing the fence was down, and, after request by plaintiff to put it up, defendant kept his sheep, so affected, in the place where they might and did have access to the sheep of plaintiff, whereby plaintiff's sheep became affected by the diseased sheep of defendant, contrary to the statute, etc., and sickened and died, and plaintiff was put to great expense in caring for them. The fourth count is at common law.

There was a plea of not guilty, and a trial by jury, resulting in a verdict for the defendant. On new trial granted on appeal to this court, a second verdict was rendered for the defendant, and, a motion for a new trial being refused, judgment was rendered on the verdict against the plaintiff, to reverse which he again appeals.

The first three counts are based upon the act of the General Assembly of February 16, 1865, entitled “An act to punish persons for bringing diseased sheep into the State, and for suffering diseased sheep to run at large.”

Section 2 of this act provides, if any person shall suffer to run at large, or keep in any place where other creatures can have access to and become infected, any sheep that is known to the owner, or person having the care and possession, to be affected with any contagious disease, shall be liable to pay all damages, etc. Sess. Laws, 1865, p. 126.

There is no real controversy about the leading facts, the proof sustaining all the material allegations in the several counts of the declaration. As this court said, when the case was first before us, there is no doubt, from the testimony, that appellee's sheep were suffering from a contagious disease known as the “scab;” that they were in a pasture on his farm; that his portion of the fence between the pasture and the adjoining lot of appellant, where he kept his sheep, was not in good condition, and that his sheep became diseased, many of them dying, and that several of appellee's sheep were in appellant's flock before the disease appeared in that flock.

It is satisfactorily established that appellee's flock of sheep had the scab from 1867 up to and including the spring of 1869, and the conclusion is irresistible that appellant's flock was infected by them, and by reason of appellee's negligence in keeping his diseased sheep as he did.

There is some controversy as to the rulings of the court upon the offer by appellant of rebutting testimony, in which we are inclined to think the court erred. Appellee had shown by several witnesses that they had cured sheep of the scab by dipping them in a decoction of tobacco. Appellant then offered to show by other witnesses that they had tried this prescription without success. It was claimed that appellant's damage was occasioned by his failure to treat his sheep properly. If, then, it was competent to show dipping them in tobacco water was an efficacious remedy, by the testimony of those who had tried it, and who were permitted to give their opinions thereon, it was equally competent to rebut such pretension by other testimony, and such testimony should have been admitted.

So, the rebutting testimony offered by appellant, in respect to the fact of his sheep being seen running at large in the summer of 1867 and 1868, and in the spring of 1869, the object of which was to induce a belief on the part of the jury that the sheep got the disease elsewhere, and not from appellee's flock, it was competent for appellant to show they were the sheep of another person, and not his. The identity of the sheep was an important fact, and open to full inquiry.

But, waiving consideration of these matters, we will examine the principal grounds of complaint on the part of appellant, and they arise on the instructions given for appellee. The instructions for appellee were four in number. The first is as follows:

“In order to recover in this case, the plaintiff must show, by the evidence in the case, to the satisfaction of the jury, that the defendant's sheep not only might, but actually did communicate the disease or diseases in question to plaintiff's sheep, and if the fair preponderance of the evidence fails to establish such facts, or show that it is...