Lynch v. Grayson
| Decision Date | 03 January 1893 |
| Citation | 32 P. 149,7 N.M. 26,1893 -NMSC- 004 |
| Parties | LYNCH et al. v. GRAYSON et al. |
| Court | New Mexico Supreme Court |
On rehearing. Judgment affirmed. For prior report, see 25 P 992.
Catron Thornton & Clancy and Elliott, Pickett & Elliott, for appellees.
Rynerson & Wade and S. B. Newcomb, for appellees.
This is an action of trespass on the case, brought by the appellees against the appellants in the district court of the county of Dona Ana, wherein, by consent of parties, a jury was waived and the cause heard and determined by the court. A general verdict and judgment were rendered in favor of the appellees from which judgment an appeal was had to this court, which was heard and determined at the January term, 1891, resulting in the affirmable of the judgment below. The case is reported at page 992, 25 Pac. Rep., wherein the facts are very fully set out in the opinion of this court, as rendered by Justice Lee. In that opinion this court also endeavored to dispose of all exceptions taken to the rulings of the court below in the admission and rejection of testimony. An application for rehearing was filed and allowed, and the cause has been reargue at the present term of court.
It is now insisted, with much zeal and ability, by the attorneys for the appellants--First, that, under the legislation of this territory, it is the duty of this court to examine all the evidence in the case, precisely as if we were sitting as a jury in the court below; and, second, that having gone into the evidence, and examined all the facts, as well as all the questions of law, we will find that the judgment of the court below is not supported by the evidence which was properly received, and that we will become satisfied that the weight of evidence is with the appellants, and that, therefore, it will become our duty to reverse the judgment of the court below. In order that there may be no mistake as to the character of the issues which it is insisted we are called upon to determine, we will give the statement in the precise language of the counsel for the appellants: "This statute [section 4, Act Jan. 5, 1889] requires the supreme court to examine the record, and to determine the facts thereon. It makes no exception in favor of rulings of the court, but puts the whole record before the supreme court. We insist that it requires the supreme court to retry this case the same as the court below tried it, or the same as a jury would have tried it, without reference to any finding of facts made by the court below, and that it is the duty of this court to weigh the evidence, and decide according to preponderance of evidence, and in that way ascertain the facts, after having passed upon all objections and exceptions taken, included in the bill of exceptions in the record, and expunge such evidence as was properly objected to. It is the duty of this court to ascertain from the evidence properly before it the various facts essential to make out a case,--whether the cattle of defendants came from Texas; whether there is any infected district in the state of Texas; whether or not said cattle came from such infected district; whether they were infected with any disease germ; whether they communicated the germ from which plaintiffs' cattle contracted the disease; whether they carried the disease, and in any manner communicated it; whether the disease from which plaintiffs' cattle died is the same disease described in the declaration; whether defendants had any knowledge that their cattle came from any infected district, or any knowledge whether cattle were diseased, or carried the germs of disease, or were liable to communicate any disease to plaintiffs' cattle, and whether that disease was the disease mentioned or described in the declaration; whether or not plaintiffs had as much knowledge of the disease as defendants; whether plaintiffs communicated their knowledge to defendants, or sufficient knowledge to put the defendants upon such inquiry as would have ascertained that their cattle came from an infected district, or were infected, or carried the germs of infection of the disease mentioned and described; whether or not plaintiffs did have the same amount of knowledge which would have put them upon the same inquiries; whether or not they made any effort to guard against it; whether or not they were not negligent, in caring for their own cattle, in permitting them to run upon defendants' range, and whether or not it was not as probable that plaintiffs' cattle, if they contracted the disease from defendants' cattle, contracted it on defendants' range, from plaintiffs' negligently permitting their cattle to range with defendants' cattle, and neglected, failed, and refused to make any effort to keep them apart, after defendants' cattle had been driven to their own range; whether or not plaintiffs' cattle died from a contagion known, or commonly known, as 'Texas Cattle Fever;' and whether they did not die from a noncontagious disease, called 'Texas Fever.' We insist that if it should be found by this court that there is no evidence showing that defendants' cattle came from an infected district, or that defendants knew that they came from such infected district, plaintiffs' case fails. We further insist that if it appears from the evidence, either entirely, or by preponderance of the evidence, that defendants were ignorant that their cattle came from an infected district, and were also ignorant that their cattle carried any disease, or germs of disease, and that they were also ignorant that they were liable to communicate or spread any such disease, at the time they brought them into the territory of New Mexico, such fact, found in their favor, must defeat plaintiffs' case. We further insist that if plaintiffs had knowledge, or good reason to believe, that defendants' cattle came from an infected district, or were diseased, or carried the germ of a disease, and were liable to communicate the disease, that it was their duty to take every precaution against such disease, and that if, without making any effort to prevent it, they allowed their cattle to mix with, range and graze with, and on the same pastures with, defendants' cattle, they were guilty of contributory negligence, and cannot recover, although defendants may have had the same knowledge as plaintiffs. We insist that plaintiffs having alleged that defendants' cattle communicated to their cattle a 'contagious disease,' called 'Texas Cattle Fever,' that if the evidence shows that plaintiffs' cattle died from a disease called 'Texas Fever,' and that such disease was not contagious, or that if they died from alkali or murrain, or any other disease except the disease known as 'Texas Cattle Fever,' and which was contagious, the plaintiffs cannot recover. We furthermore insist that, if plaintiffs have alleged that the disease with which their cattle died was communicated to said cattle on the lands and premises of plaintiffs, that there is no proof showing that a single head of cattle of plaintiffs, which died, contracted the disease on the lands of plaintiffs, but that the proof shows at least as strongly that, if they did contract the disease from defendants' cattle, they contracted it on defendants' range and premises, or some other place besides the lands and premises of plaintiffs, and that when they contracted it, if they did contract it from defendants' cattle, plaintiffs were guilty of negligence,--at least, of sufficient negligence to make them contributory to the loss. We claim that under section 2190 the court must look into all of these facts, and make these findings from a preponderance of the evidence."
The position that this extraordinary jurisdiction is conferred by section 2190, Comp. Laws, is not seriously contended for by appellants, who do insist, however, that it was conferred by the fourth section of the act of our legislature approved January 5, 1889, which is as follows: "In all cases now pending in the supreme court, or which may hereafter be pending in the supreme court, and which may have been tried by the equity side of the court, or which may have been tried by a jury on the common-law side of the court, or in which a jury may have been waived, and the cause tried by the court or judge thereof, it shall be the duty of the supreme court to look into all the rulings and decisions of the court which may be apparent upon the records, or which may be incorporated in a bill of exceptions, and pass upon all of them, and upon the errors, if any shall be found therein, in the rulings and decisions of the court below, grant a new trial, or render such other judgment as may be right and just and in accordance with law; and said supreme court shall not decline to pass upon any question of law or fact which may appear in any record, either upon the face of the record or in the bill of exceptions, because the cause was tried by the court or by the judge thereof without a jury, but shall review said cause in the same manner, and to the same extent, as if it had been tried by a jury." Bearing constantly in mind the closing paragraph of this enactment, that the court "shall review said cause in the same manner, and to the same extent, as if it had been tried by a jury," it becomes now our duty to ascertain what, if any, innovation upon the practice as known to the common law has been created by this enactment. In order to do this, we shall have to have recourse to the construction given by the supreme court of the United States to similar acts of congress. The seventh amendment to the constitution provides that "no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law." The seventeenth section of our enabling...
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