Spillman v. Beauchamp

CourtUnited States State Supreme Court (Kentucky)
Citation2 A.L.R.3d 814,362 S.W.2d 33
Decision Date09 November 1962
PartiesMary Edith SPILLMAN et al., Appellants, v. Emerson BEAUCHAMP, etc., et al., Appellees.

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.

Page 34

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

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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...

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21 practice notes
  • Rowan County v. Sloas, No. 2003-SC-000938-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • September 21, 2006
    ...in the defendant's position, i.e., objective unreasonableness . . ." Yanero, 65 S.W.3d at 523. For example, in Spillman v. Beauchamp, 362 S.W.2d 33, 37 (Ky.1962), it appears employees of the Kentucky Department of Agriculture killed a farmer's cow, over his protests, thinking it was disease......
  • Rupp v. Bryant, No. 60826
    • United States
    • United States State Supreme Court of Florida
    • July 15, 1982
    ...owes solely to the public. 63 Am.Jur.2d Public Officers and Employees § 293 (1972) (footnotes omitted). See, e.g., Spillman v. Beauchamp, 362 S.W.2d 33 (Ky.1962) (officers and employees of a state department personally liable for negligence); Davis v. Little, 362 So.2d 642 (Miss.1978) (offi......
  • Craig v. Com., Dept. of Public Safety
    • United States
    • United States State Supreme Court (Kentucky)
    • September 24, 1971
    ...in KRS 186.565 is a valid exercise of the police power. 60 C.J.S. Motor Vehicles, § 1649, p. 844. Cf. Spillman v. Beauchamp, Ky., 362 S.W.2d 33 (1962), and People ex. rel Albrecht v. Hartnett, 221 App.Div. 487, 224 N.Y.S . 97 (1927). 88 A.L.R.2d 1068 and Later Case The judgment is affirmed.......
  • Thompson v. Huecker
    • United States
    • Court of Appeals of Kentucky
    • December 9, 1977
    ...to an absolute immunity from personal liability for his acts, he has been afforded a qualified immunity. In Spillman v. Beauchamp, Ky., 362 S.W.2d 33, 2 A.L.R.3d 814 (1962), the court held that an officer acting in good faith within the scope of his authority was not personally liable for d......
  • Request a trial to view additional results
21 cases
  • Rowan County v. Sloas, No. 2003-SC-000938-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • September 21, 2006
    ...in the defendant's position, i.e., objective unreasonableness . . ." Yanero, 65 S.W.3d at 523. For example, in Spillman v. Beauchamp, 362 S.W.2d 33, 37 (Ky.1962), it appears employees of the Kentucky Department of Agriculture killed a farmer's cow, over his protests, thinking it was disease......
  • Rupp v. Bryant, No. 60826
    • United States
    • United States State Supreme Court of Florida
    • July 15, 1982
    ...owes solely to the public. 63 Am.Jur.2d Public Officers and Employees § 293 (1972) (footnotes omitted). See, e.g., Spillman v. Beauchamp, 362 S.W.2d 33 (Ky.1962) (officers and employees of a state department personally liable for negligence); Davis v. Little, 362 So.2d 642 (Miss.1978) (offi......
  • Craig v. Com., Dept. of Public Safety
    • United States
    • United States State Supreme Court (Kentucky)
    • September 24, 1971
    ...in KRS 186.565 is a valid exercise of the police power. 60 C.J.S. Motor Vehicles, § 1649, p. 844. Cf. Spillman v. Beauchamp, Ky., 362 S.W.2d 33 (1962), and People ex. rel Albrecht v. Hartnett, 221 App.Div. 487, 224 N.Y.S . 97 (1927). 88 A.L.R.2d 1068 and Later Case The judgment is affirmed.......
  • Thompson v. Huecker
    • United States
    • Court of Appeals of Kentucky
    • December 9, 1977
    ...to an absolute immunity from personal liability for his acts, he has been afforded a qualified immunity. In Spillman v. Beauchamp, Ky., 362 S.W.2d 33, 2 A.L.R.3d 814 (1962), the court held that an officer acting in good faith within the scope of his authority was not personally liable for d......
  • Request a trial to view additional results

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