Spillman v. Beauchamp

• Citation: 2 A.L.R.3d 814,362 S.W.2d 33
• Parties: Mary Edith SPILLMAN et al., Appellants, v. Emerson BEAUCHAMP, etc., et al., Appellees.
• Decision Date: 09 November 1962
• Court: United States State Supreme Court (Kentucky)

Page 33

362 S.W.2d 33

2 A.L.R.3d 814

Mary Edith SPILLMAN et al., Appellants, v. Emerson BEAUCHAMP, etc., et al., Appellees.

Court of Appeals of Kentucky.

Nov. 9, 1962.

Bruce R. Hamilton, LaGrange, for appellants.

John B. Breckinridge, Atty. Gen., Walter Herdman, Asst. Atty. Gen., William G. Mullins, Dept. of Public Safety, Frankfort, for appellees.

CULLEN, Commissioner.

Mary Edith Spillman and Charles Ashbrook brought an action for damages against the Commissioner of the Department of Agriculture of Kentucky, three regular employes and two temporary employes of the department, an employe of the U. S. Department of Agriculture, and two state policemen. The defendants moved to dismiss on the grounds that the complaint did not state a claim upon which relief could be granted and that the court did not have jurisdiction of the subject matter. The court sustained the motion and entered judgment dismissing the action, from which judgment the plaintiffs have appealed.

The facts set forth in the complaint, if accepted as true, were sufficient to state several claims upon which relief could be granted, and presented issues of which the circuit court would have jurisdiction. However, in a 'Memorandum in Support of Defendants' Motion to Dismiss' filed in the circuit court the defendants set forth a statement of facts which they relied upon as exonerating them from liability or at the least creating issues of which the circuit court would not have jurisdiction. Apparently the circuit judge accepted this statement of facts in ruling on the motion to dismiss. In so doing he erred.

It is true that CR 12.02 provides that if, on a motion to dismiss on the ground that the complaint fails to state a claim on which relief can be granted, 'matters out-side the pleading' are presented to and not excluded by the court, the motion shall be treated and disposed of as one for summary judgment. But statements of fact in a legal memorandum are not within the category of 'matters outside the pleading' contemplated by the rule. United States v. Tuteur, 7 Cir., 215 F.2d 415. They lack the ceremonial quality of testimony in open court which may be found in depositions, admissions or affidavits. Sardo v. McGrath, 90 U.S.App.D.C. 195, 196 F.2d 20. Furthermore, a summary judgment is not to be granted unless the pleadings, depositions, admissions and affidavits on file show that there is no genuine issue as to any material fact, CR 56.03. Here, even if the statement of facts in the defendants' memorandum were entitled to be considered, some of the facts in the statement controverted fact allegations of the complaint, so as to establish, rather than negative, the existence of genuine issues of material facts.

A strict adherence to the rules of civil procedure would demand that the judgment here be reversed outright, because the allegations of the complaint, which stated several claims for relief of which the circuit court would have jurisdiction, were not in any way nullified procedurally by the defendants' memorandum in support of motion to dismiss. But the parties in arguing the case on appeal have treated certain questions as having properly been placed in issue, and we believe the progress of this litigation will be expedited if we dispose of those questions. So we shall.

One claim stated in the complaint was that the defendants wrongfully and maliciously entered upon the plaintiffs' farm and unlawfully, wrongfully and illegally converted, stole, removed and killed the plaintiffs' cow. In the statement of facts set forth in their memorandum in support of motion to dismiss, the defendants stated that they did enter upon the plaintiffs' farm, remove the cow and cause it to be killed, but in so doing they acted as officers and agents of the Kentucky Department of Agriculture under authority of and pursuant to the statutes relating to control and eradication of communicable diseases of livestock; that the cow had been tested by a veterinarian of the department and found to be suffering from Bang's Disease; that the plaintiffs had been ordered by the department to destroy the cow but had refused to do so; and the defendants in taking and killing the cow had acted under a specific order of the Commissioner of Agriculture directing such action.

The primary issues submitted on the appeal are whether the Department of Agriculture has statutory authority to kill an animal suffering from a communicable disease; whether (if such authority exists) the killing may be done summarily upon an ex parte determination by the department that the animal has the disease; whether, in the event of such a summary killing, the officers and agents who do the killing are personally liable in an action in the courts if it later is proved that the animal did not in fact have the disease; and whether, if they are so liable, the liability may be enforced by action in the courts or is enforceable only by proceedings before the Board of Claims under KRS 44.070 to 44.160.

We have no difficulty in concluding that the statutes governing control and eradication of communicable diseases of animals (even before the 1962 amendment to KRS 246.210) granted authority to the Department of Agriculture to kill diseased animals. KRS 246.210 authorized entry upon premises for the purpose of 'in any way combating communicable diseases among livestock.' KRS 257.020 gave the State Board of Agriculture power to 'prevent, control and eradicate' any communicable disease of livestock. KRS 257.030 vested in the board full authority to adopt and enforce regulations necessary to accomplish the purpose of the livestock disease laws. KRS 257.110 specifically provided for the slaughtering of diseased animals. (It is true that the latter section contemplates an appraisal procedure before the slaughtering in which the owner of the animal shall participate, but a reasonable construction of the statute would be that if the owner refuses to participate the appraisal and slaughtering may be carried on without his participation.)

The appellants maintain that even if the department does have statutory authority to kill a deceased animal, the killing may not be done summarily upon an ex parte determination by the department that the animal is diseased. The argument is that the owner is entitled under the Constitution to a hearing before the animal is killed. But the law is all to the contrary....