Pearson v. Zehr

• Decision Date: 11 May 1891
• Citation: 29 N.E. 854,138 Ill. 48
• Parties: PEARSON et al. v. ZEHR.
• Court: Illinois Supreme Court

138 Ill. 48

29 N.E. 854

PEARSON et al.

v.ZEHR.¹

Supreme Court of Illinois.

May 11, 1891.²

Appeal from circuit court, Tazewell county; N. W. GREEN, Judge.

Action of trespass by Christian Zehr against John M. Pearson, H. McChesney, C. P. Johnson, C. L. Williams, and John Casewell. Plaintiff obtained judgment. Defendants appeal. Affirmed.Palmer & Shutt and George Hunt, Atty. Gen., for appellants.

W. R. Curran and B. S. Prettyman, for appellee.

BAKER, J.

The appellee, Christian Zehr, brought trespass quare clausum fregit against appellants for breaking and entering his close with force and arms, and killing certain of his horses, and destroying certain of his harness; and he had verdict and judgment in the circuit court of Tazewell county for $1,350 damages. Appellants pleaded not guilty, and also special pleas, wherein they justified the acts complained of, upon the ground that the horses of appellee were diseased with a certain contagious and infectious disease called ‘glanders,’ and that the harness was poisoned with the contagion of that discase; that certain of appellants were and constituted the board of live-stock commissioners of the state of Illinois, and that others of appellants were the servants and agents of said board; and that, in pursuance of the authority conferred upon appellants by law, they entered the premises, and killed the horses and destroyed the harness, doing no more harm, etc. Various replications were interposed to these special pleas, and among them replications which denied that the horses were diseased with glanders, and that the harness was infected with its poison, and replications which charged an excess of force, etc.; and the trial was had upon the general issue and upon the issues formed on the replications.

Complaint is made that the court sustained a demurrer to an additional plea which was filed by appellants. The substance of that plea is that it came to the knowledge of Pearson, McChesney, and Smith, who were then the board of livestock commissioners of the state of Illinois, that there was reasonable ground for the belief that the horses of the plaintiff kept in his close were diseased with a dangerous, contagious, and infectious disease called ‘glanders,’ and that they, as such board of live-stock commissioners, caused an examination and investigation to be made, and upon such examination and investigation found and decided three of the horses to be diseased and disordered with said disease, and one of the horses to have been exposed to infection from such disease, and the harness to be poisoned with such infection, and ordered and directed the defendants Johnson, Williams, and Casewell to slaughter and kill said horses, etc. The duties which are to be performed by the board of live-stock commissioners, in cases where they find a dangerously contagious or infectious malady among domestic animals, are pointed out in section 2 of the act approved June 27, 1885, entitled ‘An act to revise the law in relation to the suppression and prevention of the spread of contagious and infectious diseases among domestic animals.’ Laws 1885, p. 1. It is to be noted that the only authority given them by the statute to kill and destroy domestic animals exists in cases of contagious and infectious diseases, and is the ‘power to order the slaughter of diseased animals,’ and the power ‘to order the appraisement and slanghter of all such animals as have been exposed to such contagion.’ The statute does not afford, and does not purport to afford, immunity to the commissioners or to their agents and servants in the event they slay live-stock which have been negligently or erroneously determined by the board to be sick with a contagious or infections malady, or to have been exposed to such contagion. It is the fact of such disease or exposure thereto which, under the statute, gives the power; and without the fact exists, the slaughter of the animals is not an act done under authority of law. In the case at bar it is no justification of that which was done that the commissioners acted in good faith; that there were reasonable grounds for the belief that some of the horses were diseased with glanders, and that others of them had been exposed to that contagion; and that they made, or caused to be made, an honest and careful investigation and examination to the best of their ability, and as a result thereof decided and determined that some of said horses were so diseased, and that others of them had been so exposed. It is to be borne in mind that the act of 1885 makes no provision for compensation for animals killed by mistake, and which are not diseased with a contagious or infectious disease, or for paying the value of animals...