The Missouri v. Haber

• Decision Date: 11 April 1896
• Docket Number: 10003
• Court: Kansas Supreme Court
• Parties: THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. CHARLES HABER et al

44 P. 632

56 Kan. 694

THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. CHARLES HABER et al

No. 10003

Supreme Court of Kansas

April 11, 1896

Decided January, 1896. [Copyrighted Material Omitted]

Error from Lyon District Court.

CHARLES HABER, as plaintiff, brought suit in the district court of Chase county against E. A. Hosier and George D. Hosier partners as Hosier Bros., The Missouri, Kansas & Texas Railway Company, Francis Brogan, W. J. Brogan, and Joseph N Brogan, partners as Brogan & Sons, and numerous other parties defendant, alleging that the plaintiff resided in Lyon county, and there kept and owned 49 head of healthy native cattle; that Hosier Bros. owned and kept in the state of Texas 2,300 head of wild, undomesticated Texas cattle capable of communicating Texas, splenic, or Spanish fever to the native cattle of Kansas; that between April 1 and July 15, 1892, the defendants, Hosier Bros., The Missouri, Kansas & Texas Railway Company, and Brogan & Sons transported, drove and brought said Texas cattle from a point in Texas south of the thirty-seventh parallel of north latitude into the state of Kansas, in violation of the act of the legislature of Kansas entitled "An act for the protection of cattle against contagious diseases," and acts amendatory thereof and supplementary thereto; that said cattle were transported to Hartford, Lyon county, Kansas, and thence driven through Lyon county into Chase county, along the highway, and upon the range and pasture where plaintiff's cattle were kept; that the defendants before named had knowledge and information that said Texas cattle were capable of imparting said disease to the domestic cattle of this state; that they did communicate said disease to plaintiff's cattle, and thereby caused them to sicken and die, to his damage $ 2,500. A great number of other persons, who had also had cattle die from Texas fever imparted by the same herd of cattle, were joined as defendants. The petition alleges that the Texas cattle had been quarantined, and afterward placed in possession of a receiver, who held them with the consent of all parties in interest. They were afterward sold by the receiver, and at the time of filing the amended petition he held the proceeds derived from the sale. The plaintiff claimed a lien on the funds in his hands for the amount of his loss, and asked judgment against Hosier Bros., the railway company, and Brogan & Sons for the amount of his damages, that it be adjudged a lien on the funds in the receiver's hands, and be satisfied out of the same. The other defendants are alleged to claim an interest in said fund because of losses of cattle sustained by them from the same cause. The defendants who had lost cattle from the same cause answered separately, stating a cause of action substantially similar to that of the plaintiff, and asking satisfaction of their claims out of the moneys in the hands of the receiver, and for judgment against the same parties. The railway company moved the court to require the plaintiff to make his petition more definite and certain by stating specifically what interest, if any, or connection with said cattle the railway company had except that of a common carrier, and, second, by stating what, if any, interest, lien or claim upon the funds in the hands of the receiver the railway company had. This motion was overruled.

The railway company then answered, alleging, in substance, that it was incorporated under the laws of Kansas, and engaged in the business of a common carrier of freight and passengers between different states; that it connected at Denison, Tex., with the Missouri, Kansas & Texas Railway Company of Texas, a different corporation, and that said last-named railroad connected at Taylor, Tex., with the road of the Texas & Pacific Railway Company, another corporation, operating a line of railroad extending westward from Fort Worth through the town of Midland; that on April 26, 1892, Hosier Bros. entered into a written contract with the Texas & Pacific Railway Company to transport for them 744 head of cattle from Midland, Tex., to Hartford, Kan., and on the next day made a further contract for like transportation of 644 more; that on June 10, 1892, said Hosier Bros. made a further contract with the said company for the transportation of 485 other cattle from and to the same places; that all of said cattle were loaded into the cars at Midland, Tex., furnished by the Texas & Pacific Railway Company; that there is no other railroad running into Hartford, Kan., except that of the defendant; that the defendant received said cattle at Denison, Tex., as a connecting carrier, in the same cars in which they were first loaded, and delivered the same to Hosier Bros. at their destination, as named in the contract with the Texas & Pacific Railway Company. It denied that it had anything whatever to do with driving the cattle from Hartford to the Brogan pasture in Chase county, and alleged that, on February 26, 1892, the secretary of the department of agriculture issued and served upon all the railroad companies of the United States, including the defendant company, his regulations concerning cattle transportation, a copy of which was attached to the answer; that the circular letter establishing such regulations was issued in accordance with section 7 of the act of congress of May 9, 1884, entitled "An act for the establishment of a bureau of animal industry to prevent the exportation of diseased cattle, and to provide means for the suppression and extirpation of pleuropneumonia and other contagious diseases among domestic animals," and that said rules and regulations removed all restrictions from the transportation of cattle to and from any, portion of the United States, except that portion described in said regulations as the area in which the disease known as splenic or southern fever exists among cattle; that Midland, Tex., the point from which said cattle were shipped, lies outside of the infected district as designated by the secretary of agriculture, and that said cattle had been kept in Pecos county since the 1st of December, 1891, and had not been east or south of the government quarantine line; that before said cattle were received by the defendant company, one Albert Dean, live-stock inspector of the bureau of animal industry, acting under the authority of the department of agriculture of the United States, and also under the state board of live-stock sanitary commissioners of Kansas, issued to Hosier Bros. permits for the shipment of said cattle; that it had no notice or knowledge that said cattle were infected with Texas or splenic fever, or would communicate said disease, and that because of its relation to the public as a common carrier it was bound to receive and transport said cattle.

There is no conflict in the testimony as to the essential facts. Hosier Bros. owned a large ranch in Pecos county, Tex bordering on the Pecos river. The headquarters of the ranch, which was about 40 miles square, was on Independence creek, about six miles from the river. On this ranch they had a great number of cattle, which ranged freely over the country, and sometimes crossed the river into Crockett and Val Verde counties. The quarantine line established by the secretary of agriculture, as shown by the map and circular letter, runs along the Pecos river, and on the east line of Pecos county. Midland, the station at which the cattle were loaded, is outside of the boundaries of the infected district as designated by the secretary; but the line of the Texas & Pacific railroad crosses into the infected district a short distance east from Midland, and the whole route over which the cattle were shipped, thence to the south line of Kansas, is included in the infected district. Although bills of lading in the usual form were issued by the Texas & Pacific Railway Company, the contract for the shipment of the cattle was made by E. A. Hosier with the agents of the Missouri, Kansas & Texas Railway Company at Kansas City, Mo., at a rate below the usual rate. The business was sought after by the agents of the company. They were informed that the cattle were being shipped from Texas to Kansas for the purpose of being pastured in a large pasture owned by Brogan in Chase county; that it was distant about 20 miles from Hartford; that it would be necessary to drive the cattle across the country from Hartford in order to reach the pasture; that the pasture was much nearer to Bazar, a station on the Atchison, Topeka & Santa Fe railroad, than to Hartford, and in order to secure the business a rate of $ 10 less per car was made on the shipment. A contract for pasturing the cattle had been made by the Hosiers with the Brogans, under which the Brogans agreed to receive the cattle either at Hartford, Olpe, or Bazar. It was claimed on the trial, by Brogan, that the railway company agreed to pay him for driving the cattle from Hartford to his ranch in consideration of his aiding the company in securing the shipment over its road instead of the Santa Fe. The cattle were shipped as stated in the pleadings, were received by the Hosiers at Hartford, and driven under the directions of Brogan thence to his Chase county ranch. In July, cattle along the route over which they were driven began to show symptoms of Texas fever, and thereafter great numbers of them died. A number of separate actions were brought in Chase and Lyon counties, which were all consolidated, and by stipulation the whole matter was removed to Lyon county, and the case of the plaintiff and of all cross-petitioning defendants against the railway company alone was tried together, the action as against Hosier Bros. and Brogan & Sons having been continued to a subsequent term. The jury brought in verdicts in...