Kutchera v. Graft

• Decision Date: 20 September 1921
• Docket Number: 34022
• Parties: J. W. KUTCHERA, Appellant, v. W. S. GRAFT et al., Appellees
• Court: Iowa Supreme Court

184 N.W. 297

191 Iowa 1200

J. W. KUTCHERA, Appellant, v. W. S. GRAFT et al., Appellees

No. 34022

Supreme Court of Iowa, Des Moines

September 20, 1921

Appeal from Linn District Court.--F. O. ELLISON, Judge.

ACTION to recover damages against defendant landlord, based on fraudulent concealment of hog cholera infection of the leased premises, from which the tenant claims his hogs contracted cholera and died. There was a directed verdict for defendant and judgment thereon against plaintiff for costs. Plaintiff appeals. Facts appear in the opinion.

Affirmed.

Ring & Hann, for appellant.

Voris & Haas, for appellees.

ARTHUR J. EVANS, C. J., STEVENS and FAVILLE, JJ., concur.

OPINION

ARTHUR, J.

Defendant W. S. Graft owned a farm, located about a mile southwest of Central City, in Linn County, Iowa. On September 26, 1918, plaintiff leased the farm for the period beginning March 1, 1919, and ending March 1, 1921, and, on or about March 1, 1919, moved from North English, where he had been living, to the farm, and took with him 11 brood sows and 28 shoats and pigs. The hogs were shipped in one car. After plaintiff moved on the Graft farm, the sows farrowed 66 pigs. On arrival at the farm, the hogs were placed in a small lot near the barn, and kept there three or four days, and then permitted to run in a field of 15 or 18 acres. In the latter part of March, many of plaintiff's hogs became sick and died. Plaintiff employed Clifford Moles, veterinarian, who treated and vaccinated the hogs. Moles says he was first called April 6th. A Mr. Rich had occupied the premises as tenant, the year preceding March 1, 1919. Rich's hogs had cholera in August, 1918. Dr. Moles vaccinated 25 of the hogs by what is called the "double treatment." Some of them died. After that, he was on the premises a few times in September. A government inspector visited the premises, during the presence of cholera in August. Moles posted a quarantine notice on the east side of the barn, where it could be plainly seen from the road, or by anyone coming on the premises. After treating the hogs, Moles turned them over to the government inspector, and gave Rich directions as to disinfecting the premises, and told Rich that he had better burn the dead hogs; that, if he buried them, he should bury them six feet deep, and cover them with quicklime; and that that would be safe. On September 27, 1918, plaintiff was on the farm and about the buildings, and was again on the farm in December, 1918, and was not afterwards on the farm until he moved, on March 1, 1919. When plaintiff's hogs became sick, the latter part of March, he employed Veterinarian Moles to treat them. Dr. Monger, a government veterinarian, went with Dr. Moles to the premises. Drs. Moles and Monger posted four or five of the Kutchera hogs, and found that they had cholera. On April 7th or 8th, Moles and Monger were on the premises. They found portions of carcasses, not well covered up, in a ditch about 80 rods from the barn. The carcasses had been covered, and the dirt washed away. The carcasses were decayed so that they made no examination. They saw two carcasses, and these were only partially exposed. Kutchera showed them the two carcasses, and did not point out any more. There was one carcass on top of the ground, three or four rods from the barn. Moles vaccinated 44 head of the Kutchera hogs.

W. S. Graft died before the trial, and the administratrix of his estate was substituted as defendant.

Plaintiff testified that the physical condition of his hogs when he took them to the Graft farm was good--was healthy.

Plaintiff's charge of fraudulent concealment consists of what he claims to be the facts that Rich's hogs had been diseased of cholera in the fall of 1918; that W. S. Graft had knowledge that some of Rich's hogs had died from cholera; that the hogs which died of cholera were not properly buried, and that W. S. Graft knew that they were not properly buried; and that W. S. Graft in no way informed the plaintiff of such facts; that the plaintiff was ignorant of such facts; and that Graft, having knowledge of such facts and conditions, deliberately, willfully, and wrongfully concealed from plaintiff such facts.

Plaintiff further charges negligence on the part of Graft in failing to disinfect the premises.

In support of his charge that Graft knew that Rich's hogs had cholera in the fall of 1918, and knew how the dead hogs were disposed of, he offered the testimony of his 17-year-old son, Robert Kutchera, who testified that Graft was on the farm several times after they moved there; that he heard a conversation between Graft and his father at the dinner table at their house on the farm, wherein "Mr. Graft told my father that he had told Rich to bury the hogs up there. He pointed toward the direction of the west field at the time. At another time, he told my father that the man on the farm before Rich did not have cholera among his hogs, but that Rich's hogs did."

Mrs. J. H. Lapham, who was employed as a domestic in the Kutchera home during the months of March and April, 1919, testified to a conversation that she heard between Kutchera and Graft at the dinner table, wherein she reports Graft as saying:

"Mr. Graft said he wanted Rich to bury the hogs. * * * He said he told Rich he ought to bury them."

Bertha Kutchera, wife of plaintiff, testified that she heard a conversation between Graft and her husband in April, 1919, at the dinner table, wherein Graft said that Rich's hogs had died with cholera, and he told him to bury them up there.

"He pointed west of the house. I heard my husband tell Mr. Graft that he thought he ought to pay him for the loss; that he knew there was cholera on the place: and he answered, 'I will not pay for them; go to Rich,--he is responsible for them.'"

Robert Hass, brother-in-law of Kutchera, who was working for Kutchera, testified that, about April 25th, Mr. Graft came out to the farm; and that, in a conversation with him, Graft spoke about the Rich hogs that had died, and said that it was cholera, and that he had told Rich that it was a poor place to bury them, where he had buried them.

R. C. Hatch, a township trustee, testified that, in the latter part of April, 1919, Graft notified him that Rich had buried hogs in a ditch, and that Rich should look after them; that he went and saw Rich, but Rich did not bury them; and that, later on, Mr. Graft buried the hogs himself. Hatch said:

"Graft wanted me to see Rich, and have him attend to burying the hogs; that Rich should have burned them, or buried them out on the hill, where they would not wash."

There was testimony bearing on damages, which need not be discussed.

At the close of plaintiff's testimony, defendant moved for a directed verdict in his favor, which was sustained, the motion being:

"1. There is no evidence of fraud or deceit or concealment on the part of the deceased, W. S. Graft, and in the absence of such evidence there is no liability on the part of deceased, or the representatives of his estate.

"2. There is no evidence that the deceased, W. S. Graft, knew there had been cholera on the premises, and no evidence that he knew the hogs had been left in the ditch uncovered; no evidence to show that he had any knowledge, or that knowledge could be imputed to him.

"3. It appears the deceased was not in the occupancy of the premises preceding the occupancy of the plaintiff, but that the premises had been occupied by a tenant, a one Fred Rich. It does not appear that the premises were under the control of the deceased in the fall of 1918, down to the first of March, 1919, and no knowledge of the conditions can be imputed to him because of his relations and landlord.

"4. It does not appear that the dead hogs found on the premises in April ever had the disease known as cholera.

"5. It does not appear that the plaintiff's hogs contracted the disease directly or indirectly from the dead hogs found on the premises in April, or from any other infection on the premises.

"6. There is no evidence that plaintiff's hogs contracted the disease from any conditions existing on the premises. The most that can be claimed is that conditions existed which might have caused the disease; but whether such disease was caused by the conditions is but mere surmise, speculation, and conjectural. The relation of cause and effect is not shown.

"7. On the whole record, plaintiff is not entitled to recover; or if a verdict were returned for him against the defendant, it would be the duty of the court to set it aside."

It was established by the evidence that there was cholera in Rich's herd of hogs during the season of 1918, when he was a tenant on the Graft farm, and that the ravages of the disease began in August and continued into and ended in September. Perhaps it ended early in September; for, late in September, at the time Kutchera entered into his lease with Graft, he and Graft were on the farm and went over it and about the buildings, and evidently discovered no trace of hog cholera on the premises. Again in December Kutchera was on the premises, and discovered nothing wrong. Veterinarian Moles treated and vaccinated the hogs, a government inspector assisting him. Some of the hogs died, but the record does not disclose to what extent the herd died. The veterinarian instructed Rich how to dispose of the carcasses. The record does not disclose anything more about cholera on the farm, or concerning the disposition of the hogs that died, until along in April, when cholera broke out in the herd of Kutchera. Then it was that Mr. Graft was out on the farm and took dinner with the Kutchera family, and conversation arose at the dinner table about Kutchera's misfortune, and about the disposition of some hogs that Rich...