Reif v. Morrison.
| Decision Date | 05 March 1940 |
| Docket Number | No. 4515.,4515. |
| Citation | 44 N.M. 201,100 P.2d 229 |
| Parties | REIFv.MORRISON. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Union County; Livingston N. Taylor, Judge.
Action by George Reif against S. M. Morrison for damages to cattle resulting from negligence in leaving poisoned feed on grazing land. From a judgment for defendant, plaintiff appeals.
Reversed and remanded.
If occurrence of intervening cause upon which defendant would rely to avoid liability for negligence might reasonably have been anticipated, such intervening cause will not interrupt the connection between the original cause and the injury.
Adolf J. Krehbiel, of Clayton, for appellant.
Bate Bond, of Clayton, for appellee.
The question here presented is whether the first amended complaint of plaintiff and appellant stated a cause of action. It is not important whether the pleading of defendant and appellee by which he attacked the amended complaint may be called a demurrer or motion for judgment on the pleadings, the question becomes one of simply testing the legal sufficiency of the facts pleaded by the amended complaint.
Without undertaking to set out in full the matters alleged in the amended complaint (hereafter to be referred to as the complaint), it may be said that the following facts were substantially alleged: That defendant, living upon a neighboring farm and in a house in the vicinity and in full view of the land and leased premises hereinafter referred to, sometime in the month of July, 1938, without right, but as a trespasser, entered upon the land of one Roberts and there left exposed and uncovered poisoned feed, consisting of bran and sawdust, which he, the defendant, so stored and placed upon said land without notice to the owner or other persons, and that defendant permitted the said stored and poisoned feed to remain on said premises so exposed continuously from the time the same was placed there until after the injury complained of and as hereinafter set out, was suffered by plaintiff.
That the lands in question were adapted to the use and were usable primarily as grazing lands though they were not used by any one at the time of the storing thereon of the said poisoned feed; but, that plaintiff leased from the said owner the said lands thereafter and in October of said year and immediately placed thereupon a number of head of cattle and that a large number of the cattle ate of the said feed, were poisoned and died as a result thereof, all to plaintiff's damage, in an amount therein stated.
There is the further allegation that after plaintiff's cattle were placed upon said leased pasture land and before they had eaten of any of the said poisoned feed, defendant had personal knowledge of the fact that plaintiff had so leased the said land from the owner and had placed his cattle thereupon, but that defendant nevertheless took no steps to give plaintiff notice, remove said feed from the premises or to protect plaintiff's cattle from the danger; that plaintiff himself had no knowledge of the trespass by which defendant had, without permission or knowledge of the owner, entered the lands of the owner and placed the feed thereupon as alleged.
In questioning the legal sufficiency of the complaint to state a cause of action defendant admits, for the purpose of the argument, that were it the owner of the land himself who might be complaining of such injury a different question would be presented. But, he argues, plaintiff, not being in July, 1938, the owner of the land upon which he was alleged to have trespassed or the lessee thereof, no duty was owing plaintiff or other persons who might have had occasion to use the land, because there was no privity of contract between the plaintiff and any such other person, including defendant.
There is no allegation or suggestion that the injury suffered was maliciously caused. The poisoned feed was a left-over or unused portion so stored during the general fight upon grasshoppers infesting this and other communities of the state, and was placed upon the neighbor's land as a matter of convenience to defendant.
The answer to the question of whether the plaintiff thus states a cause of action against defendant of course rests upon a determination of what duty was actually owing to plaintiff by defendant, plaintiff not being the owner of the land and not at the time of the original trespass, making use thereof.
[1] The fact that defendant was a trespasser upon the land of the owner, when he placed and stored the feed in his pasture, could not affect the question here, excepting as it might resolve any question of the owner's knowledge and consent to the act, and perhaps as it might answer any suggestion or charge against the owner of his assumption of responsibility for protecting the feed from exposure to live stock that might thereafter be put upon the land. The complaint, however, alleges the trespass and negatives any knowledge of the presence of the poisoned feed by any other person excepting the defendant.
[2] Should defendant, as a reasonable man, acting under these circumstances, knowing the use to which it was adapted and the use to which the land would likely be put, and particularly thereafter when he saw the use to which plaintiff was in fact putting it, have taken some steps to remove the feed or keep the cattle from reaching it or to advise the user, plaintiff here, of the imminent danger should his cattle discover and eat it? We think so. Defendant owed the duty of at least reasonably undertaking to protect plaintiff from the loss which defendant's own negligence was under the circumstances reasonably calculated to cause.
Defendant misunderstands or misapplies the rule of negligence which plaintiff would here invoke. Likewise plaintiff has erroneously placed reliance upon Section 35-2427, N.M. Comp.St. 1929, which, among other things, refers to the crime of willfully and maliciously administering or exposing any poison substance, “with intent that same may be taken or swallowed” by any live stock or other animals.
[3] Plaintiff argues that to poison live stock in the manner alleged in the complaint, being in violation of the statute is negligence per se and seeks thus to strengthen his case as pleaded. He overlooks, however, the obvious fact that there must be a willful and purposeful act in exposing the poison to bring it within the criminal statute and thus make the act one of negligence per se.
If plaintiff has set out a cause of action by his complaint, it is simply one of negligence, not implying a willful wrong, but showing merely an injury suffered by plaintiff resulting from the actionable negligence of defendant.
Defendant relies upon the occurrence of an “intervening cause”, that of the renting of the land...
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