Mendilie v. Snell

• Decision Date: 21 October 1912
• Citation: 127 P. 550,22 Idaho 663
• Parties: CLAUDIO MENDILIE, Respondent, v. G. D. SNELL, Jr., and JAMES M. ROBERTS, Sheriff, Appellants
• Court: Idaho Supreme Court

127 P. 550

22 Idaho 663

CLAUDIO MENDILIE, Respondent, v. G. D. SNELL, Jr., and JAMES M. ROBERTS, Sheriff, Appellants

Supreme Court of Idaho

October 21, 1912

LIEN DEPENDENT ON POSSESSION-HERDER'S LIEN-CHARACTER OF POSSESSION NECESSARY TO LIEN.

(Syllabus by the court.)

1. Under the provisions of sec. 3446 of the Rev. Codes "Every person who, while lawfully in possession of an article of personal property, renders any service to the owners thereof, by labor, or skill employed for the protection, improvement, safekeeping, or carriage thereof has a special lien thereon, dependent on possession, for the compensation, if any, which is due him from the owner, for such service."

2. Under the provisions of sec. 3446, Rev. Codes, the possession necessary to entitle the party to a lien must be such as to give the party for the time the exclusive care, control and direction of the property, which must be more than that of a mere servant for hire from day to day or month to month who is subject to the direction and orders of the master.

3. Sec 3446, Rev. Codes, is intended to apply to cases where a party takes the possession of personal property, such, for example as livestock, and agrees to graze, feed or pasture the stock for a period of time and assumes the exclusive care of and responsibility for the property, and furnishes or procures the feed or pasture therefor, whether it be from his private inclosure or on the public domain.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. C. P. McCarthy, Judge.

Action for damages. Judgment for plaintiff and defendants appeal. Reversed.

Judgment reversed and a new trial granted. Costs awarded in favor of appellants.

Griffiths & Griffiths, for Appellants.

"The statutory lien exists, generally, only in favor of one who has actually kept the animal, and whose business it is to feed cattle, and does not attach in favor of a mere servant employed in the care of animals." (2 Cyc. L. & P. 317, and cases cited; Boston & K. C. Cattle Loan Co. v. Dickson, 11 Okla. 680, 69 P. 889; Vose v. Whitney, 7 Mont. 385, 16 P. 846; Feltman v. Chinn, 19 Ky. Law Rep. 1147, 43 S.W. 192; Cunningham v. Hamill, 84 Mo.App. 389; Cotton v. Arnold, 118 Mo.App. 596, 95 S.W. 280; Howard Commission Co. v. National Livestock Bank, 93 Ill.App. 473; Wenz v. McBride, 20 Colo. 195, 36 P. 1105; King v. Canal Co., 11 Cush. 231; McDermid v. Foster, 14 Ore. 417, 12 P. 813; Sharp v. Johnson, 38 Ore. 246, 84 Am. St. 788, 63 P. 485.)

Frawley & Block, for Respondent.

The cases cited by appellants, in support of their contention that the statute in question, viz., 3446, Idaho Rev. Codes, does not give respondent a lien, in so far as they come under the common law, as Hoover v. Epler, 52 Pa. 522, are certainly not in point, as respondent does not claim any common-law lien, nor are cases based on an entirely different statute without any similarity to the Idaho statute.

"All of the provisions of our mechanics' and laborers' lien law, as well as all other statutes, must be liberally construed with a view to effect their object and promote justice." (Phillips v. Salmon River Mining Co., 9 Idaho 149, 72 P. 886.)

"It is evident that the legislature intended to protect employees in their services by giving them a special lien on the property left in their care." (Idaho Comstock Min. & Mill. Co. v. Lundstrum, 9 Idaho 257, 74 P. 975; Williamson v. Moore, 10 Idaho 749, 80 P. 227.)

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This action was instituted by the plaintiff against defendant Snell, as mortgagee of a certain band of sheep, and James M. Roberts, as sheriff of Ada county, for the purpose of recovering some $ 1,122, as damages alleged to have accrued by reason of the defendant's taking the sheep from the possession of the plaintiff. The plaintiff alleged that he was employed by the owners of the sheep, Joe Odiago and Frank Marcuerquiago, at the agreed wage of $ 45 per month and board, to herd and care for this band of sheep, and that he began work for the owners in September, 1909, and continued to work under such employment until October, 1911, and that at the time the defendants took possession of the band of sheep plaintiff was holding a lien against the property for his wages under the provisions of sec. 3446, Rev. Codes. Judgment was entered in favor of the plaintiff, and defendants appealed.

Sec. 3446 provides as follows: "Every person who, while lawfully in possession of an article of personal property, renders any service to the owner thereof, by labor, or skill employed for the protection, improvement, safekeeping, or carriage thereof, has a special lien thereon, dependent on possession, for the compensation, if any, which is due him from the owner, for such service. Livery or boarding or feed stable proprietors, and persons pasturing livestock of any kind, have a lien, dependent on possession, for their compensation in caring for, boarding, feeding or pasturing such livestock."

The appellants contend that respondent was a mere hired man by the month, subject to the constant orders and directions of the master, the employer and owner of the sheep, and that the employee had no such possession of the sheep as is contemplated by the provisions of sec. 3446, and that he could not, and did not, acquire a lien under the provisions of the statute. There is no substantial difference or conflict between the parties as to the nature of respondent's employment and the character of service he rendered. It appears quite clearly that he was employed in the ordinary capacity of herder, and that the sheep he was herding were grazed on the public domain, except during the winter seasons, when they were kept and fed on Snake river and were herded and grazed about through the sagebrush as well as could be done during the winter weather. The owners of the sheep exercised the same right of control and possession as they had always done. They furnished all feed and supplies, they boarded the respondent, they assisted in moving camp, and apparently selected the ranges where the sheep should be grazed. It is true that Odiago, one of the owners, testified that respondent was to be responsible for the care and protection of the sheep and for any that might be lost or destroyed by wild animals, and that he was to withhold the price of any such animals from the respondent's wages. During all this time the owners sold sheep and lambs from the band at any time they saw fit to do so to the aggregate of somewhere between three and four thousand head. They sheared the sheep and sold the wool, and at the time the appellants took these animals from respondent they found him in charge of only about 1,100. It also appears from the evidence that a portion of the time there was about 5,000 head of sheep in this band, and that they were run and herded in three separate bands, and that when so separated the respondent was in charge of one band and another herder in charge of another and one of the owners was in charge of the third. It appears from the evidence that the owners had one other herder employed all the time that respondent was in their employ, and that this other herder had the same and like possession of the sheep as respondent had. The case was tried to a jury, and the trial court instructed the jury on the question of possession as follows:

"The statute says that the lien created by it is dependent on possession. The possession of a mere servant performing service is not, and cannot be, exclusive of his master's possession, and such an exclusive possession is not required. In order to satisfy the statute, so far as the question of possession is concerned, the plaintiff in this case must have been placed in possession of the sheep by the owner for the purpose of performing the services called for by his contract, and must have continuously maintained possession for such purpose from the time that he took such possession until the sheep were taken from him, and such possession must have been for the protection and safekeeping of said sheep. The mere fact that his possession was his master's possession, and that another coservant had joint possession of the sheep with the plaintiff by the orders of the master, would not defeat the plaintiff's claim to a lien. But his...