Patee v. Adams

• Decision Date: 09 July 1887
• Citation: 37 Kan. 133,14 P. 505
• Parties: M. E. PATEE v. N. A. ADAMS
• Court: Kansas Supreme Court

14 P. 505

37 Kan. 133

M. E. PATEE v. N. A. ADAMS

Supreme Court of Kansas

July 9, 1887

Error from Shawnee District Court.

M. E PATEE filed a petition in the district court, and alleged substantially that on the 1st day of June, 1884, she was the owner of twelve head of domestic cattle in the county of Riley, of the value of $ 1,200; that the defendant, N. A Adams, on or about the day mentioned, unlawfully drove into the county of Riley two hundred head of diseased Texas or southern cattle being cattle from the country south of the state of Kansas; that the last-named cattle were diseased with Texas, splenic or Spanish fever, and were driven or caused to be driven into Riley county from outside the state by the defendant, between the 1st day of March, 1884, and the 1st day of November, 1884; that by reason of such driving and the holding of said cattle in Riley county by defendant Texas, splenic or Spanish fever was communicated to twelve head of the plaintiff's domestic cattle, which caused said twelve head to become sick and die, and that the plaintiff was thereby damaged in the sum of $ 1,200. The defendant demurred to the petition because it did not state that the defendant knew, or had reason to know, that the cattle alleged to have been driven were diseased with the fever mentioned in the petition. The demurrer was sustained by the court, and the plaintiff excepted to the ruling thereon, and subsequently amended her petition by adding the allegation respecting the knowledge of the defendant which was held by the court to be necessary. The defendant then answered by a denial of all the averments of the petition and alleged that about the time stated in plaintiff's petition he purchased and shipped to Manhattan, Kansas, several car-loads of cattle, a portion of which were discharged at Manhattan into the stock yards of the Union Pacific Railway Company, and before they were all unloaded, but still in the possession of the railway company, the sheriff of Riley county seized the cattle and took and forcibly held the possession of the cattle for a long period of time, during which time the defendant Adams had no authority or control over the cattle; that the sheriff established an inclosure near the Kansas river and turned the cattle therein; that the inclosure was surrounded by a strong and durable fence provided with gates for gaining entrance thereto, and that the sheriff put the cattle under the authority of his deputy, who guarded the same day and night, and refused to permit the defendant Adams, or any other person, to assume control over them; and that the plaintiff carelessly, unlawfully and negligently opened the gates into the inclosure and turned her domestic cattle therein, and that if any disease was contracted by said cattle it was the result of her own carelessness and negligence.

Trial at the October Term, 1885. The court refused to instruct the jury that the defendant was liable, regardless of whether he knew or had reason to know that the cattle which he had purchased and shipped were diseased. Upon this question the court charged the jury as follows:

"If you believe from the evidence that the defendant, Adams, brought or caused to be brought into the county of Riley, state of Kansas, Texas cattle, or cattle liable to communicate Texas, Spanish or splenic fever to the domestic cattle of this state, and that said cattle came from the country south of this state between the 1st day of March, 1884, and the 1st day of November, 1884, and that defendant knew or had reason to know, or could by ordinary diligence have known, that said cattle were diseased cattle, or were cattle liable to communicate Texas, Spanish or splenic fever to the domestic cattle of this state; or if the defendant knew, or could with ordinary diligence have known, that such cattle were diseased with such disease, and were liable to communicate it to the domestic cattle of this state, and such cattle so brought or caused to be brought into said Riley county, communicated such disease to the domestic cattle of the plaintiff, and thereby plaintiff's cattle died, you will find for the plaintiff, and the value of such cattle as she lost as shown by the evidence."

In another instruction the court said:

"If you find from the evidence that the defendant, Adams, purchased the cattle described in the petition in good faith, in Kansas City, this state, without any knowledge that said cattle were infected with Texas, splenic or Spanish fever, and that he had no reason to know or believe that such cattle could or would communicate to the cattle of this state Texas, splenic or Spanish fever, and that he did not know or have reason to believe or know that such cattle would or could communicate the Texas, splenic or Spanish fever to the cattle of this state, till they arrived at Manhattan, Riley county, and that the sheriff immediately seized said cattle by virtue of a process issued by Wilder, a justice of the peace, and before the plaintiff's cattle had been exposed, and were by the sheriff placed in quarantine, and the defendant, Adams, was deprived of any control over said cattle, and that during the time the said cattle were quarantined by the sheriff, and the defendant deprived of the control of said cattle, the plaintiff's cattle took said disease by going upon said quarantined grounds, either while defendant's cattle were there in the custody of the sheriff or his deputy, or after they were removed therefrom, then the plaintiff cannot recover in the action."

The court also advised the jury that if the plaintiff opened the gates and turned her cattle into the inclosure where the diseased cattle were being held, as described in the answer, she would be guilty of contributory negligence, and could not recover. The plaintiff excepted to the rulings of the court upon the instructions refused and given. The verdict and judgment being in favor of the defendant, the plaintiff brings the case to this court for review.

Judgment affirmed.

A. H. Case, and Charles Curtis, for plaintiff in error.

Green & Hessin, and Peck, Johnson & McFarland, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

There are really but two points in controversy between the parties in this case: one is, whether a person who purchases or otherwise obtains cattle that are diseased with Texas, splenic, or Spanish fever, and who drives or causes them to be driven through any county of the state, shall be held liable for all damages that may arise by the communication of disease from the cattle so driven, without regard to whether he knew or should have known that the cattle were diseased, or liable to communicate disease to the domestic cattle of the state. The other point involved is, whether the doctrine of contributory negligence is applicable to an action like the present one. The action was brought under the statute enacted for the protection of cattle against contagious diseases. (Laws of 1881, ch. 161; Laws of 1884, ch. 3.) The act of 1881, in section 1, provides:

"That no person or persons shall drive or cause to be driven into or through any county in this state, any cattle diseased with the disease known as Texas, splenic or Spanish fever. Any person violating any provision of this act shall on conviction be adjudged guilty of a misdemeanor, and shall be fined not less than one hundred and not more than one thousand dollars, and be imprisoned in the...