Hubbard v. State

• Decision Date: 14 January 1969
• Docket Number: No. 53089,53089
• Citation: 163 N.W.2d 904
• Parties: Harold HUBBARD, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 904

163 N.W.2d 904

Harold HUBBARD, Appellant, v. STATE of Iowa, Appellee.

No. 53089.

Supreme Court of Iowa.

Jan. 14, 1969.

Jesse, LeTourneau & Johnston, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Don R. Bennett, Special Asst. Atty., Gen., David S. Sather, Asst. Atty. Gen., for appellee.

MASON, Justice.

This is an action under chapter 25A, Code, 1966, Tort Claims Act, Acts of the Sixty-first General Assembly, against the State to recover for negligence in diagnosing plaintiff's herd of cattle as being infected with anaplasmosis when, in fact, they were not so infected.

Defendant's motion to dismiss was sustained on the ground trial court lacked jurisdiction of the subject matter of the action under this Act. Plaintiff has appealed.

During the fall of 1963 plaintiff owned a herd of 226 cattle on his farm in Clarke County. Shortly before October 14 a state veterinarian sent blood samples from 12 if the herd to the State Veterinary Diagnostic Laboratory, State University in Ames. The laboratory reported 5 samples as showing a positive reaction indicating a highly contagious and infectious disease known as anaplasmosis.

In accordance with state law and rules and regulations of the agriculture department that all reactor cattle be isolated at least 50 feet from any other cattle, the veterinarian quarantined the entire herd as being infected with anaplasmosis. Copy of regulations promulgated by the argiculture department furnished plaintiff provided quarantine would be released following two consequent negative tests on entire herd 60 days apart.

During October, December and January the veterinarian continued to send the laboratory blood samples from various animals of the herd. Reports of samples from the same animal were inconsistent in that a sample would be reported as being positive on one date, whereas a sample from the same animal would be reported as negative a few weeks later.

In early January 1964 plaintiff and the veterinarian sent one sample from 42 head reported as positive for the disease to Diagnostic Laboratory and one sample from these same animals to Diamond Laboratory, Des Moines. Diagnostic Laboratory reported only 8 of the 42 samples were positive, while Diamond Laboratory, running tests on blood samples of the same animals taken the same day, showed only 2 possible reactors.

When confronted with proof of the inconsistent results of tests run by Diagnostic Laboratory, the agriculture department's Division of Animal Industry immediately lifted quarantine of plaintiff's herd.

June 30, 1967, after his claim for damages filed with state comptroller was denied by the appeal board, plaintiff instituted suit against the State, alleging veterinarians involved were agents of employees of the agriculture department acting on its behalf in the scope of their authority.

Plaintiff alleged defendant was negligent in one or all of the following:

'(a) It failed to employ recognized and appropriate tests to determine whether plaintiff's cattle herd had anaplasmosis.

'(b) It failed to use the skill of a diagnostic specialist in veterinary medicine, such as it professed to be, which special skill would have discovered that plaintiff's cattle herd did not have anaplasmosis.

'(c) It failed to carry out its tests in accordance with the recognized and appropriate procedures to determine whether plaintiff's cattle herd had anaplasmosis.

'(d) It failed to discover the discrepancies in the tests conducted by it although they were discoverable by reasonably diligent examination; and in failing to make sufficiently frequent examinations in that regard.

'(e) It failed to condemn said animals pursuant to the provisions of Chapter 163, 1966 Code of Iowa.'

Plaintiff further alleged as a direct and proximate result of defendant's negligence his cattle herd, livestock and farm were rendered less valuable and he was forced to dispose of them at less than fair market value.

Defendant asserted in motion to dismiss plaintiff's petition alleged a cause of action over which the State had not waived its common law governmental immunity to suit; therefore, the court lacked jurisdiction of subject matter.

I. In his only assignment plaintiff asserts the trial court erred in sustaining defendant's motion to dismiss based upon lack of jurisdiction of subject matter.

Prior to March 30, 1965, the effective date of the Iowa Tort Claims Act (herein called the Act), our courts lacked jurisdiction over suits brought against the State and its agencies sounding in tort. In Montandon v. Hargrave Construction Co., 256 Iowa 1297, 130 N.W.2d 659, we held the doctrine of governmental immunity to tort actions was jurisdictional and affirmed the lower court's order sustaining the special appearance filed by defendant State agency.

The parties' contentions here present the issue whether plaintiff's petition asserts a claim specifically excluded from coverage under the Act by the 'misrepresentation' clause of section 25A.14.

In support of trial court's ruling defendant argues the Act waives governmental immunity to claims sounding in tort only as to claims defined and to the extent provided in chapter 25A; exclusions in section 25A.14 are applicable to the subject matter of plaintiff's petition.

This section provides in pertinent part:

'The provisions of this chapter shall not apply to:

'1. * * *

'2. * * *

'3. Any claim for damages caused by the imposition or establishment of a quarantine by the state, whether such quarantine relates to persons or property.

'4. Any claim arising out of * * * misrepresentation, (or) deceit, * * *'

Section 25A.2(5) defines a claim for the purpose of the Act:

"Claim' means any claim against the state of Iowa for money only, on account of damage to or loss of property or on account of personal injury or death, caused by the negligent or wrongful act or omission of any employee of the state while acting within the scope of his office or employment * * *.'

The State contends the Act excludes from coverage a claim arising out of misrepresentation or decit and also any claim for damages caused by imposition or establishment of a quarantine by the State. It argues this is such a claim because it arises out of testing of his cattle by the State agency on the basis it had negligently tested the livestock, had found and reported to plaintiff such livestock were diseased when in fact they were not, and as a result of such report plaintiff's herd was subjected to quarantine and sale at reduced prices.

Plaintiff, on the other hand, contends his claim is for negligence in improperly diagnosing his herd, not for misrepresentation. The negligence is said to be failure to exercise skill and care requisite to the duty to properly diagnose. He argues diagnosis of the herd was conducted by a series of completed tests; the results were complied and given plaintiff; the results were not misrepresented, and the actionable tortious conduct is the State's negligence in conducting the tests which is clearly within the general provisions of the Act.

II. If we sustain the State's contention the cause is based on misrepresentation and thus within the exclusion, the case is governed by Montandon and the trial court was correct in its ruling. On the other hand, if plaintiff's contention that his cause is based upon negligence is upheld, the trial court was in error since the Montandon holding has been modified by the Act to the extent governmental immunity is waived under its provisions.

To some extent our Act is patterned after the federal Tort Claims Act and contains many of the same exclusions, including the 'quarantine' exception in 28 U.S.C.A. § 2680(f) and the 'misrepresentation' exception in 28 U.S.C.A. § 2680(h).

The 'misrepresentation' exception of the federal statute has been construed by the Tenth Circuit Court of Appeals contrary to plaintiff's contention here in Hall v. United States (1959), 274 F.2d 69. The Hall decision was subsequently cited and strongly relied on by the United States Supreme Court in United States v. Neustadt (1961), 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614.

Hall v. United States, supra, was an action filed pursuant to the provisions of the federal Tort Claims Act. Plaintiff had alleged in substance that he was engaged in the cattle business in New Mexico; at all times material he owned approximately 333 head of livestock; defendant through its Department of Agriculture, Agricultural Research Division, Animal Disease Eradication Division, and its agents and employees was engaged in testing livestock for Brucellosis; they tested his herd; the results of the tests were made known to him; they revealed one or more of his cattle were suffering from the disease; and as a result of such report, his herd was subject to quarantine and a sale was made at reduced prices. Plaintiff had alleged that, in truth and in fact, the tests were negligently performed by defendant's agents; there were in fact no diseased cattle in his herd; and as a direct and proximate result of defendant's neglgience, plaintiff was forced to dispose of his herd at less than fair market value.

The district court had predicated its judgment of dismissal on the ground the damages alleged resulted from the imposition or establishment of a quarantine and that liability resulting from the establishment of a quarantine was excluded from the Act.

The circuit court affirmed the lower court but on the ground that in addition to excluding liability because of a quarantine, the Act also excludes liability because of misrepresentation.

In its opinion the circuit court said:

'* * * If we take the literal meaning of the language of the complaint, it seeks to recover damage resulting from the negligent testing of the cattle for which there would be liability. But there is no claim that because of negligent testing these cattle suffered physical damages which made them less valuable, such as may come from...