Snadon et al. v. Jones and Nichols

• Citation: 136 S.W.2d 127
• Decision Date: 04 December 1939
• Docket Number: No. 19466.,19466.
• Court: Court of Appeal of Missouri (US)
• Parties: G.W. SNADON ET AL., CO-PARTNERS DOING BUSINESS UNDER THE NAME AND FIRM STYLE OF G.W. SNADON & SONS, RESPONDENTS, v. HERBERT V. JONES AND J.C. NICHOLS, UNIVERSITY TRUSTEES UNDER THE WILL OF WILLIAM ROCKHILL NELSON, DECEASED, APPELLANTS.

136 S.W.2d 127

G.W. SNADON ET AL., CO-PARTNERS DOING BUSINESS UNDER THE NAME AND FIRM STYLE OF G.W. SNADON & SONS, RESPONDENTS, v. HERBERT V. JONES AND J.C. NICHOLS, UNIVERSITY TRUSTEES UNDER THE WILL OF WILLIAM ROCKHILL NELSON, DECEASED, APPELLANTS.

No. 19466.

Kansas City Court of Appeals, Missouri.

December 4, 1939.

Appeal from the Circuit Court of Jackson County. — Hon. Brown Harris, Judge.

REVERSED AND REMANDED.

Wilson, Bundschu & Bailey for appellants.

(1) Defendants' instruction in the nature of a demurrer to all the evidence should have been sustained. (a) A bailee is not an insurer of an animal entrusted to his care but is liable only for failure to exercise ordinary care in the custody, preservation and care of the bailed animal. Freeman v. Foreman, 141 Mo. App. 359, 125 S.W. 524; Robert v. Rialto Bldg. Co., 199 Mo. App. 121, 199 S.W. 428; Kramer v. Grand National Bank, 336 Mo. 1022, 81 S.W. (2d) 961. (b) Such care is that which an ordinarily prudent person would exercise over his own property of like character. 1 R.C.L. 1153, Animals, sec. 96; 3 C.J. (2d) 1108, Animals, sec. 17. (c) The burden of proof is upon plaintiffs to prove negligence. Vaughn v. Jackson, 216 S.W. 331. (d) Negligence presupposes a legal duty. 45 C.J. 631, Negligence, sec. 2; Vairo v. Vairo (Mo. App.), 99 S.W. (2d) 113, l.c. 115; Glenn v. Hill, 210 Mo. 291, l.c. 300, 109 S.W. 27, 6 L.R.A. (N.S.) 699. (e) There is no duty to anticipate what a reasonably prudent person would not have anticipated. Cluett v. Union Electric Light & Power Co., 205 S.W. 72, 220 S.W. 865; Wecker v. Grafeman-McIntosh, 326 Mo. 451, 31 S.W. (2d) 974, l.c. 977; Williams v. Terminal Railroad Assn., 339 Mo. 594, 98 S.W. (2d) 651; Mattingly v. Broderick, 225 Mo. App. 377, 36 S.W. (2d) 415, l.c. 418. No liability attaches where the injured person's knowledge of the danger equals that of defendants. Negligence, 20 R.C.L. 14, secs. 10 and 11. (f) In the absence of knowledge that the animal was infected, defendants could only be held liable in the event they had reasonable cause to suspect that the animal was infected. Barton v. Dowis (Mo.), 285 S.W. 988; Wells v. Welch, 205 Mo. App. 136, 224 S.W. 120; Bradford v. Floyd, 80 Mo. 207, l.c. 212; Farrar v. Peterson & Co. (Wash.), 130 Pac. 753, 44 L.R.A. (N.S.) 109; Sec. 12820, R.S. Mo., 1929; Hart v. Horine (Mo. App.), 34 S.W. (2d) 524; Shank v. Lesich (Mo. App.), 296 S.W. 224; Patee v. Adams, 37 Kan. 133; St. Louis Ry. Co. v. Goolsby, 24 S.W. 1071, 58 Ark. 401; Brown & Co. v. Bennett, 184 S.W. 35, 122 Ark. 570; Clarendon Land Co. v. McClellan Bros., 89 Tex. 483, 31 L.R.A. 669, 34 S.W. 98, 35 S.W. 474; Alfrey v. Shouse, 163 Ky. 333, 173 S.W. 792. (2) Plaintiffs' Instruction No. 1 was erroneous in that it failed to require findings of fact essential for recovery. See authorities cited above. An instruction which omits an essential element and authorizes a verdict is incurably erroneous. Bornhoft v. City of Jefferson (Mo. App.), 118 S.W. (2d) 93, l.c. 98. (3) In the absence of negligence in permitting the animal to become infected, the plaintiffs suffered no recoverable damages for loss of that animal. (4) The alleged loss to the balance of plaintiffs' herd was due to the negligence of the plaintiffs in failing to segregate the infected animal, and defendants should not be held liable by reason thereof. A defendant may avail himself of the plaintiffs' contributory negligence without pleading the same, when plaintiffs' own testimony shows that they were guilty thereof. Kile v. Union Electric Light & Power Co., 149 Mo. App. 354, 130 S.W. 89; Eisele v. Kansas City, 237 S.W. 873; Hardcastle v. Pullman Co. (Mo.), 10 S.W. (2d) 933, 10 S.W. (2d) 935; Sissel v. St. Louis & S.F. Ry. Co., 214 Mo. 515, 113 S.W. 1104 (l.c. 1107). Plaintiffs' negligence in permitting their cattle to come in contact with the animal suspected to be infected prevents recovery by plaintiffs. Coyle v. Conway, 35 Mo. App. 490; Galbreath v. Carnes, 9 Mo. App. 512. (5) The court erred in refusing to give defendants' Instruction "F." The jury might have found that the bailment was gratuitous and in that event defendants would be liable only for gross negligence and a peremptory instruction for defendants would have been proper. Stevens v. Stevens, 132 Mo. App. 624, 112 S.W. 35; Adler v. Planters Hotel Co., 181 S.W. 1062. (6) Plaintiffs' Instruction No. 2 was erroneous in failing to advise the jury of the proper method for determining damages. In its instruction for determining damages to personal property the court should have fixed the method for determining the amount of such damage. Smith v. C., R.I. & P. Ry., 183 Mo. App. 180, 170 S.W. 324; Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W. (2d) 903; Long v. Freeman, 228 Mo. App. 1002, 69 S.W. (2d) 973; Wheeler v. Breeding, 109 S.W. (2d) 1237. (7) The damages awarded were grossly excessive and totally unsupported by the evidence.

Cornelius Roach for respondents.

(1) (a) Plaintiffs discharged the burden of proof and made a submissible case. Corbin v. Gentry et al., 167 S.W. 1144; H. Levy & Co. v. M., K. & T.R.R. Co., 157 Mo. App. 536. (b) A wrongdoer is responsible for all consequences naturally resulting from his wrong whether he could have anticipated their consequences or not. 3 C.J.S., par. 55, p. 1170; 51 A.L.R., p. 502, Note (c); Skinn v. Reuter (Mich.), 97 N.W. 152. (c) The defendant knew or had reasonable cause to suspect that the heifer in question was diseased. (2) Plaintiffs' Instruction No. 1 was not erroneous. (3) Plaintiffs were not guilty of contributory negligence. (4) The court properly refused to give defendants' Instruction F (157). H. Levi & Co. v. M., K. & T. Ry. Co., 157 Mo. App. 536; Lyons v. Corder, 253 Mo. 539, 555; Reed v. Western Union Tel. Co., 135 Mo. 661, 671; Standard Milling Co. v. Transit Co., 122 Mo. 258, 274; Brown v. Knapp & Co., 213 Mo. 655. (5) Plaintiffs' Instruction No. 2 was not erroneous. Haden v. McColly (Mo. App.); Summers v. Rutherford, 195 S.W. 511; Cottier v. C., B. & Q.R.R. Co., 33 S.W. (2d) 173. (6) The damages awarded were not excessive. 51 A.L.R. 502, Note (c); Skinn v. Reuter, 97 N.W. 152.

CAMPBELL, C.

Plaintiffs owned and operated a large farm, upon which they maintained a herd of purebred shorthorn cattle for breeding purposes. The defendants Herbert V. Jones and J.C. Nichols, in virtue of the provisions of the will of William Rockhill Nelson, deceased, are trustees and managed and operated the Sni-a-Bar farms, a tract of land consisting of approximately 2000 acres, upon which they maintain herds of purebred cattle for breeding purposes. In June, 1934, plaintiffs bought from defendants at their said farms a purebred shorthorn heifer thirteen months old, named Generosity V, for the price of $112.50, and the further consideration (according to plaintiffs) that defendants agreed to keep said heifer on their farms until it was bred to a certain bull and was sound with calf. The heifer remained on defendants' said farm until she was bred to the bull agreed upon by the parties.

Defendants by letter dated April 2, 1935, informed plaintiffs they believed the heifer was "safe" and that plaintiffs "could send for heifer any time." When plaintiffs, in response to the letter, went to defendants' farm to get the heifer, the defendants' manager thought it best to retain her because he was not certain she was with calf. In November, 1935, plaintiffs, at the request of the defendants, took the heifer to their farm where she, five days later, aborted, due to Bang's disease.

Thereafter, this suit was brought to recover damages caused by the alleged negligence of defendants in that they sold and delivered the heifer in violation of the provisions of section 12820, Revised Statutes 1929; that at the time defendants delivered the heifer to plaintiffs they knew or by the exercise of reasonable care could have known she had Bang's disease; that defendants at said time negligently failed to examine the heifer for Bang's disease, and carelessly allowed and permitted the heifer while she remained in their possession, after plaintiffs purchased her, to be infected with Bang's disease.

The petition further alleged that by reason of said negligence and as the direct result thereof, plaintiffs' herd of cattle became infected with Bang's disease and the value of their herd greatly reduced, to their damage in the amount of $2000.

The answer was a general denial. Trial with a jury resulted in a verdict for plaintiffs for $1750. Upon suggestion by the court plaintiffs remitted $1000 and judgment was thereupon rendered for $750. The defendants have appealed.

The evidentiary facts hereinbefore stated appear in the evidence introduced by the plaintiffs or they are not in controversy. Plaintiffs' evidence further shows that on the next day after the heifer aborted they had her examined and treated by Dr. Baker, a deputy state veterinarian. He testified that he removed the afterbirth from the heifer, and that he "suspicioned Bang's disease;" that he tested the heifer some thirty or forty days later (which was the proper waiting period) and found she was infected with Bang's disease; that in April, 1936, he tested plaintiffs' breeding cows and their bull, found "two suspects" and one that had Bang's disease; that he tested plaintiffs' herd October 12, 1935, and on several occasions prior to that date and found it clean; that proper practice required that a herd of purebreds be tested for Bang's disease once or twice a year and a suspected or infected herd "every thirty to sixty days."

The defendants' evidence shows that Sni-a-Bar farms was scientifically operated; that the Federal and State Governments each maintained a trained representative who cooperated with defendants in the work of breeding purebred cattle; that the 2000-acre tract maintained by them was divided into several tracts, each separated from the other by a fence; that infected animals were sold for...