Osborne v. Hittson

• Decision Date: 03 May 1915
• Docket Number: 359
• Citation: 176 S.W. 318,118 Ark. 349
• Parties: OSBORNE v. HITTSON
• Court: Arkansas Supreme Court

176 S.W. 318

118 Ark. 349

OSBORNE v. HITTSON

No. 359

Supreme Court of Arkansas

May 3, 1915

Appeal from Lee Circuit Court; J. M. Jackson, Judge; reversed.

Judgment reversed and cause remanded.

Roleson & McCulloch, for appellants.

The testimony of the three veterinary surgeons shows that it was impossible for the hogs to have contracted the cholera after they left Green Forest, but that they must have been infected with it at the time they were shipped. This testimony is undisputed, and the jury had no right arbitrarily to disregard it. 57 Ark. 413; 96 Ark. 504.

This court will reverse where the verdict is so clearly against the weight of the evidence as to shock the sense of justice. 34 Ark. 632; 70 Ark. 384; 10 Ark. 492.

Troy Pace, for appellees.

The jury were not compelled to accept the testimony of the veterinary surgeons as true; but in weighing their testimony and its credibility, the jury were required under the law to take into consideration all the evidence in the case, whether their testimony conformed to the facts as established by the evidence, and how far such evidence seemed to be true, in the light of their own common sense, experience and knowledge of the subject about which such evidence was given. 87 Ark. 257; 100 Ark. 518; 50 Ark. 520; 108 Ark. 392.

As to whether or not the hogs had cholera when shipped, was a question of fact which the jury determined adversely to appellants upon conflicting testimony. It ought to be sustained even though the court might have found otherwise or be of opinion that it is against the preponderance of the evidence. 19 F. 405; 35 F. 711; 36 F. 657; 23 Ark. 50; 18 S.W. 172; 157 F. 656; 19 Ark. 117; 51 Ark. 495; 55 Ark. 31; 90 Ark. 23; 111 Ark. 309.

On appeal, the testimony will be considered in the light most favorable to the verdict. 89 Ark. 534.

HART J. KIRBY, J., dissents.

OPINION

HART, J.

W. S Hittson and F. M. Seitz, partners doing business under the firm name of Hittson & Seitz, instituted this action against L. M. Osborne, W. C. Osborne and Albert Starratt to recover the price of a carload of hogs which the plaintiffs alleged they had sold to the defendants.

The defendants in their answer averted that the contract of sale provided that the hogs should be free from cholera, and that the hogs were infected with cholera when they received them. The jury returned a verdict for the plaintiffs for the price of the hogs, and the defendants have appealed.

The facts are substantially as follows: The plaintiffs were dealers in stock and hogs at Green Forest, Carroll County, Arkansas, and the defendant L. M. Osborne owned a farm in Lee County, Arkansas. In December, 1912, he purchased a carload of hogs from the plaintiffs, and the contract of sale provided that the hogs should be free from cholera or other infectious diseases. The hogs were shipped by the plaintiffs at Green Forest on the 9th day of December, 1912, and arrived at Mart anna, in Lee County, about 12 o'clock on the 11th of December. They were at once loaded in wagons and carried to the farm of the defendant Osborne, where they arrived about 7 o'clock P. M. on the evening of December 11.

Albert Starratt testified that he was manager of the Osborne farm in Lee County, but that he had no interest in the farm or hogs purchased by Osborne from the plaintiffs; that he went to Marianna with wagons to haul the hogs to the Osborne farm on the day of their arrival; that one of the hogs was practically dead on arrival, and died on the way home; that four or five others were sick; that when he examined the hogs the next morning, he discovered that three more were dead; that at that time he had never had any experience with cholera, and did not know what was the matter with the hogs; that at the time there were a great many others hogs on the Osborne farm, and that all of them were healthy and free from disease; that the hogs shipped by the plaintiffs continued to get sick and to die to such an extent that a veterinary surgeon was called in and that he declared that the hogs had cholera; that the disease was communicated to the other hogs on the place, and that most of the hogs shipped by the plaintiffs, as well as the other hogs on the place, finally died of cholera.

The witness stated that he was satisfied now that the hogs had the cholera when they reached Marianna, and that he based this opinion on the knowledge of the disease he had acquired since their arrival; that he did not know at the time that they had cholera, but since that time has observed hogs pronounced to have cholera by veterinary surgeons, and that at the hogs shipped by the plaintiffs, on their arrival at the farm, were affected in the same way as cholera hogs.

Three veterinary surgeons testified that they had had experience with hog cholera, and that it was impossible for the disease to develop under seven days; that it requires from seven to twenty days after the hog has the germ of cholera in its system before the disease becomes apparent; that if a car of hogs was shipped from (Green Forest on December 9, and arrived at Marianna on December 11, and the hogs began to die on the next day, it would be impossible for them to have been healthy and free from cholera at the time they were shipped; that they could not have become infected in that length of time.

On the part of the plaintiffs, it was shown that hog cholera was prevalent in certain parts of Lee County at the time the hogs arrived there; but it was not shown that the hogs in question were exposed to that disease in Lee County. Both of the plaintiffs testified that the hogs in question had been purchased in Carroll County and that some of them were purchased four days and other six days before the date of shipment; that they appeared to be healthy and free from cholera; that they both had been over Carroll County that fall purchasing hogs, and had not heard of any cholera in the county.

Other witnesses for them testified that they saw the hogs prior to their shipment, and that they appeared to be healthy and free from cholera.

The...