Pecos & N. T. Ry. Co. v. Hall

• Decision Date: 18 October 1916
• Docket Number: (No. 1032.)
• Citation: 189 S.W. 535
• Parties: PECOS & N. T. RY. CO. v. HALL.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

189 S.W. 535

PECOS & N. T. RY. CO. v. HALL.^*

(No. 1032.)

Court of Civil Appeals of Texas. Amarillo.

October 18, 1916.

On Motion for Rehearing, November 22, 1916.

Appeal from District Court, Potter County; Hugh L. Umphres, Judge.

Action by J. F. Hall against the Pecos & Northern Texas Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Terry, Cavin & Mills, of Galveston, and Madden, Trulove, Ryburn & Pipkin, of Amarillo, for appellant. R. R. Hazlewood and J. Marvin Jones, both of Amarillo, for appellee.

HENDRICKS, J.

The appellee, Hall, in the fall of 1913, contracted for 496 head of cattle from Warren & Son, to be delivered to him on or before November 1st, at Bovina, Tex.; said station being on the line of the appellant railway, and said cattle to be delivered for the purpose of shipment to the open market. On the 14th day of October he ordered from the chief dispatcher of the appellant in Amarillo, Tex., cars for the purpose of shipping said cattle, who agreed to furnish the cars at Bovina on the 24th of October. Appellee's trade with Warren & Son, with reference to the purchase and delivery of said cattle, was that the same were to be cut in the pens at their pasture, five miles from Bovina, on the morning of the 24th. The agent (Lucas) of the Pecos & Northern Texas Railway Company at Bovina refused to furnish the cars for the transportation of the cattle until said cattle were dipped and a permit issued. The cattle were exposed to a disease known as "scabies"; but the appellee testified that under his contract he was not to receive any cattle infected with such disease, and did not receive any cattle so infected.

On account of the action of the railway company, in refusing to furnish the cars, and its insistence that the cars would not be furnished or the cattle shipped unless the same were dipped, the cattle were not brought in or tendered for shipment on the 24th of October, but were held on the ranch of Warren & Son, and there dipped in compliance with the railway's demand. The particular cattle were specifically purchased by Hall, for the purpose of shipment to the open markets of Kansas City and St. Joseph, Mo., and were fat cattle, eligible for that purpose. The cattle were dipped twice, with tobacco dip, and on account of the handling and dipping of the same a resultant shrinkage and injury to said cattle produced damage which the jury assessed at $4,460.69.

It was impracticable for the appellee, after having been informed that this particular railroad would not ship his cattle, except under the conditions as stated, to take the cattle to any other railroad for the purpose of shipment, it being 100 miles to another road over which they could have been shipped to market, which would have required a week to have driven said cattle to that point. Bailey and Parmer counties, in the state of Texas, in which said cattle were located, were at the time in a quarantined territory, on account of the disease known as "scabies," the quarantine having been effectuated by a regulation and promulgation of the state authorities, as well as the federal Bureau of Animal Industry. The particular shipment was interstate, and hence, as applied to the immediate "transportation," the regulations, hereafter shown, promulgated by the Bureau of Animal Industry of the Department of Agriculture, if applicable, will control.

It is assigned and argued that neither under the regulations of the Bureau of Animal Industry, nor the state law and the regulations of the Live Stock Sanitary Commission, was the plaintiff entitled to recover. The last act affecting this subject passed by Congress on March 3, 1905, is entitled:

"An act to enable the Secretary of Agriculture to establish and maintain quarantine districts, to permit and regulate the movement of cattle and other live stock therefrom, and for other purposes." 33 Statutes at Large, 1264, United States Compiled Statutes, 1913, § 8701.

Section 1 of this act provides:

"That the Secretary of Agriculture is authorized and directed to quarantine any state," or portion thereof, "when he shall determine the fact that cattle or other live stock" therein "are affected by any contagious, infectious, or communicable disease," etc.

A railroad company is prohibited from receiving for transportation any live stock from any quarantined state, or quarantined portion of any state, except as provided in the act. Section 3 of the act provides for the promulgation of rules and regulations by the Secretary of Agriculture, permitting a method and manner of inspection, delivery, and shipment of cattle from such quarantined territory, "when the public safety will permit." Section 4 of said act provides:

"That cattle or other live stock may be removed from a quarantined state * * * under and in compliance with the rules and regulations of the Secretary of Agriculture, made and promulgated in pursuance of the provisions of section 3 of this act; but it shall be unlawful to move * * * any cattle or other livestock from an quarantined state * * * or quarantined portion of any state * * * into any other state, * * * in manner or method or under conditions other than those prescribed by the Secretary of Agriculture."

A part of regulation 21 of the federal quarantine regulations is as follows:

"Cattle not visibly diseased, but which may be a part of a diseased herd, may, without inspection, be shipped interstate as `uninspected exposed cattle' for immediate slaughter from points in the quarantined area to any recognized slaughtering center where separate pens are provided for yarding exposed cattle," etc.

As stated, these cattle were to be shipped to St. Joe and Kansas City, where, according to the testimony, the facilities mentioned were provided for the reception of the character of cattle purchased. We do not think it is necessary to prolong this opinion with a reproduction, and an analysis, of the state law and the Live Stock Sanitary Commission's regulations urged by appellant as a defense to appellee's cause of action.

There is some controversy, in the condition of the testimony, whether any of the particular cattle were actually infected with the disease designated as "scabies." Hall's trade, however, with Warren & Son, was that he was not to accept any diseased cattle. He had a "10 per cent. cut" on all spayed heifers purchased by him, and if we read the record correctly, on October 23d, there were 695 head of "Mule Shoe" cattle dipped (owned by Warren & Son), and only 6 head of that number, as testified to by appellant's own witness Keeliehor, were affected with the particular disease. Appellee, who saw the cattle prior to the time of the dipping, and thereafter at the pens preparatory to shipment, testified that none of his cattle were affected with scabies, though it is uncontradicted that the same had been exposed to the disease.

It is, of course, the general rule that, where the federal and state government have concurrent power, if the federal government is inactive, the state's power may be executed; the corollary to this, however, is that the government's power is paramount, and it is the rule that, when the subject of the transportation of live stock from one state to another is taken under direct national supervision, and a system devised by which diseased stock may be excluded from interstate commerce, any state regulations in respect of such matters will cease to have any force. The acts of Congress and the regulations thereunder will alone control. Reid v. Colorado, 187 U. S. 137, 146, 23 Sup. Ct. 92, 47 L. Ed. 108. The veterinary inspector, Jones, testified:

"When I told the agent (meaning Lucas, the local agent at Hereford) that Hall had a right to ship these cattle as exposed cattle, he contended all the time that he would not accept them without a certificate or a permit."

We are clear that the shipper had the right to pen and ship these cattle under the regulations of the Bureau of Animal Industry from Bovina to the open market for immediate slaughter, without the demand and the exaction by the railway company for the dipping (and certificate to that effect) of said cattle; and as applied to shipment for immediate slaughter, regarding the cattle as uninspected exposed cattle, the railroad company had no legal justification to make such a demand and refuse to furnish the cars for...