North & Douglas v. Woodland

• Decision Date: 19 February 1906
• Citation: 85 P. 215,12 Idaho 50
• Court: Idaho Supreme Court
• Parties: NORTH & DOUGLAS, a Copartnership Composed of GEORGE NORTH and RICHARD DOUGLAS, Respondent, v. T. J. WOODLAND, Appellant

85 P. 215

12 Idaho 50

NORTH & DOUGLAS, a Copartnership Composed of GEORGE NORTH and RICHARD DOUGLAS, Respondent, v. T. J. WOODLAND, Appellant

Supreme Court of Idaho

February 19, 1906

SHEEP INFECTED WITH SCAB-DUTY OF OWNER OR EMPLOYEE-SUFFICIENCY OF PLEADING.

1. In a civil action for damages, under section 21 (Sess. Laws 1901 p. 151), scienter need not be alleged or proven where carelessness or negligence is averred.

2. In declaring the acts mentioned in the above section punishable by fine, imprisonment, or both, the legislature was exercising the police powers of the state, and in such case the complaint need not allege that the defendant knew the act complained of was unlawful.

3. Under the provisions of sections 21 (supra), 23, and 6886 of the Revised Statutes, a complaint that alleges that the injury complained of was the result of the careless and negligent acts of defendant is sufficient.

4. Where the instructions to the jury fairly state the law on all the issues involved, it is not error to refuse requests of defendant, even though they may be a repetition of the law of the case.

5. Where a verdict is not in excess of the demand of plaintiff's complaint, and no error appearing in the admission of the evidence or instructions of the court, and there is any evidence tending to prove the amount of damages this court will not examine the evidence to ascertain whether the verdict is excessive or not where the defendant fails or refuses to submit evidence.

(Syllabus by the court.)

APPEAL from the District Court of Sixth Judicial District for Bingham County. Hon. J. M. Stevens, Judge.

Action for damages from which defendant appealed. Judgment affirmed.

Judgment affirmed with costs to respondents.

J. W Jones and Gray & Boyd, for Appellant.

We contend that an averment in the complaint of knowledge on the part of the defendant as to the condition of his sheep, as well as proof of such knowledge, is essential to a recovery herein. Section 9 of the act to suppress contagious and infectious diseases of sheep (Idaho Sess. Laws, 1901, p. 145), recognizes this doctrine that scienter must be alleged and proved in cases of this character. (Patee v. Adams, 37 Kan. 133, 14 P. 505; Wade on Notice, 2d ed., 271; Chitty on Pleading, 69; Voorman v. Lawyer, 13 Johns. 339; Dearth v. Baker, 22 Wis. 73; Lyke v. Van Leuven, 4 Denio, 127; Missouri P. Ry. Co. v. Finley, 38 Kan. 550, 16 P. 951, 956; 2 Am. & Eng. Ency. of Law, 2d ed., pp. 364, 381, 382, and cases there cited; Hawks v. Locke, 139 Mass. 205, 52 Am. Rep. 702, 1 N.E. 543; 2 Cyc. 333, 337, and cases cited; Van Leuven v. Lyke, 1 N.Y. 515, 49 Am. Dec. 346; 1 Estee on Pleading, 4th ed., secs. 1870, 1872; Clarendon Land etc. Co. v. McClelland Bros., 86 Tex. 179, 23 S.W. 576, 1100, 22 L. R. A. 105; 89 Tex. 483, 59 Am. St. Rep. 70, 34 S.W. 98, 35 S.W. 474, 31 L. R. A. 669.)

The testimony for the plaintiffs shows indubitably that they were guilty of contributory negligence, resulting in the loss complained of herein. For this reason, they cannot recover. "Evidence ought not to be admitted of facts not put in issue by the pleadings." (Haner v. Northern P. Ry. Co., 7 Idaho 305, 62 P. 1028.) None of the instructions asked by the plaintiffs and given by the court are predicated on belief from the evidence, or words of a like purport, and they are therefore erroneous. (Blashfield's Instructions to Juries, sec. 79, and cases cited; Sackett's Instructions to Juries, 2d ed., and cases cited.)

Plaintiffs' Instruction No. 2 is contrary to law and erroneous, in that it assumes that there was a difference in the value of the sheep at time of mixing and at time of turning them back, instead of leaving it to the jury to find whether there was a difference or not. This is a fact to be found and not assumed. (Barrelett v. Bellgard, 71 Ill. 280.)

Plaintiffs' Instruction No. 4 is erroneous, in that it assumes that eleven head of sheep were never returned. (Sackett's Instructions to Juries, 2d ed., sec. 16, and cases cited; Blashfield's Instructions to Juries, sec. 29 et seq., and cases cited.)

Hansbrough & Adamson, for Respondent.

When sheep break out of their inclosure and communicate a disease known as hoof rot or hoof distemper to other sheep, it is not necessary to prove that the defendant had knowledge of such disease in order to recover damages for such infection. ( Lynch v. Grayson, 5 N. Mex. 487, 25 P. 992. Affirmed in Grayson v. Lynch, 163 U.S. 468, 16 S.Ct. 1064, 41 L.Ed. 230; Croff v. Cresse, 7 Okla. 408, 54 P. 558.)

In an indictment against a party for driving scabby sheep across the range, it need not be alleged that the accused knew that the sheep had scab. (State v. Sterritt, 19 Or. 352, 24 P. 523.) Section 21 of the Idaho Session Laws of 1901, page 151, recognizes the doctrine that scienter need not be alleged or proven. Respondent was entitled to all consequential damages. (Idaho Sess. Laws 1901, p. 150, sec. 19.)

Under a general allegation of damage the plaintiff may prove and recover those damages which naturally and necessarily result from the act complained of, for the law implies that they will proceed from it. (2 Sutherland on Damages, 3d ed., sec. 418, and cases cited; Rauma v. Bailey, 80 Minn. 366, 83 N.W. 191; Moyer v. Gorden, 113 Ind. 282, 14 N.E. 476; Wrought Iron Range Co. v. Graham, 80 F. 474, 25 C. C. A. 570; Smith v. Pittsburgh etc. Ry. Co., 90 F. 783; City of Abiline v. Wright, 4 Kan. App. 708, 46 P. 715.)

"If there is an issue of fact to be determined from the evidence under proper instructions from the court, as to the law, it is error for the court to charge the jury that the plaintiff is entitled to recover; but if the evidence makes the case so clear for the plaintiff that a verdict for the defendant would be contrary to the evidence, the error is immaterial." (Levitzky v. Canning, 33 Cal. 299.) The court is authorized to direct a verdict for either party when a contrary verdict could not be sustained by the evidence. Hughes on Instructions to Juries, sec. 127, and cases cited; Page v. Tucker, 54 Cal. 121.) The court has power to direct a verdict when there is no conflict in the evidence. (Martin v. Ward, 69 Cal. 129, 10 P. 276; Chenery v. Palmer, 6 Cal. 122, 65 Am. Dec. 493; Watson v. Damon, 54 Cal. 278; Page v. Tucker, 54 Cal. 121.)

STOCKSLAGER, C. J. Ailshie, J., and Sullivan, J., concur.

OPINION

STOCKSLAGER, C. J.

This action is for the recovery of damages, plaintiffs alleging that defendant wrongfully and negligently permitted his sheep, which were infected with scab, and not in charge of a herder, to run upon the public highway and mix with the sheep of plaintiff, which were being driven along such highway free from scab or other infectious disease, fat and in good condition and not upon quarantined ground; that because of such mixing and intermingling of sheep, the plaintiffs were compelled to dip those which came in contact with defendant's sheep and otherwise to treat them, to the injury of such sheep and to plaintiffs' damage in the sum of $ 477.55. Defendant filed a general demurrer which was overruled, whereupon he filed an answer and cross-complaint. The answer denies all the material allegations of the complaint. The cross-complaint sets up negligence on the part of plaintiffs in permitting the sheep to be mixed and comingled, alleging that by reason of the careless and negligent manner plaintiffs, their agents and employees, handled their sheep in driving along the highway, about two hundred and sixty of plaintiffs' sheep escaped from their herd and entered through the fence and upon the feed ground of defendant and without defendant's knowledge or consent mixed with his sheep. Plaintiffs answered this cross-complaint denying the material allegations thereof. At the trial of the cause a jury was impaneled and a verdict was returned in favor of the plaintiffs for the sum of $ 464.03, for which amount judgment was entered. The appeal is from the judgment and from an order overruling a motion for a new trial. Counsel for appellants assign sixteen errors and urge all of them in their brief. The first is that the demurrer to the complaint should have been sustained. They say: "The action is one ex delicto for damages, and the right of plaintiffs to recover depends solely upon their proper allegation and proof of negligence on the part of defendant only." Again they say: "It was not alleged in the complaint that the sheep of defendant were quarantined because of their having any infectious disease, nor was it alleged that defendant knew or had reason to believe that his sheep had the scab or any infectious disease at the time the intermingling occurred, and for these reasons the attempted allegation of negligence on the part of the defendant is insufficient. It consists solely in the statement that defendant carelessly and negligently permitted the herds to get together and become mixed on the public highway, by reason of there being no herder with defendant's said sheep." This statement in the brief of learned counsel for appellant fairly states the issue involved in this action. In other words, if the doctrine of scienter is applicable, the demurrer should have been sustained; otherwise it was not error to overrule it. An examination and construction of the various statutory provisions of this state relating to the privileges granted flock-masters and their employees in handling their herds on the public domain and the public highways of the state, together with the restrictions cast upon sheep, infected with what is commonly called scab, or any other infectious or contagious disease, must necessarily determine the important question at issue, as the constitutionality of none of the provisions is questioned. It is...