Tremaine Alfalfa Ranch & Milling Co. v. Hurley
| Decision Date | 16 April 1928 |
| Docket Number | Civil 2660 |
| Parties | TREMAINE ALFALFA RANCH & MILLING COMPANY, a Corporation, Appellant, v. EMORY J. HURLEY, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Affirmed.
Messrs Silverthorn & Van Spanckeren, for Appellant.
W. L Barnum, for Appelle.
Emory J. Hurley, hereinafter called plaintiff, brought suit against Tremaine Alfalfa Ranch & Milling Company, a corporation hereinafter called defendant, for damages alleged to have accrued through the illness and death of certain hogs sold by defendant to plaintiff. The case was tried to a jury, which returned a verdict in favor of plaintiff, and, after the usual preliminaries, an appeal was taken to this court.
There are but two assignments of error, which raise in effect but one question of law, to wit, does the evidence sustain the verdict? On assignments of this nature it is, of course, true that every reasonable conflict in the evidence appearing in the record must be resolved in favor of the plaintiff, and if so doing there can be found in such record sufficient evidence to sustain the verdict, it must stand. Gordon v. Brewer, 21 Ariz. 402, 189 P. 243; City of Bisbee v. Thomas, 24 Ariz. 614, 212 P. 190; Tovrea v. Yutich, 24 Ariz. 41, 206 P. 595; Durazo v. Ayers, 21 Ariz. 373, 188 P. 868.
In order to answer the question correctly, it is necessary that we should first state the substance of the complaint and answer and then discuss briefly certain phases of the evidence. Substantially speaking, and omitting all formal matters, the complaint is as follows:
About the 17th of January, 1926, plaintiff purchased from defendant 226 head of feeder hogs, paying therefor $2,112. At the time of the purchase, defendant represented that all of the hogs were healthy, free from disease or infection of every kind and nature; that they had not been exposed to any disease or infection for a period of thirty days prior to the date of the purchase; that defendant had lost no hogs by death or otherwise during that period; that all of the hogs so purchased had been treated by defendant for cholera and other infection by the process or treatment known as "triple treatment," and that plaintiff, relying upon each and all of said representations, purchased the hogs. It is further alleged that all of such representations were false, and known to the defendant to be false at the time of the sale, and that immediately after the delivery of the hogs to the plaintiff a large number became sick with cholera and hemorrhagic septicemia, and 137 head thereof, of the value of $1,279.58, died; and that, in order to save the remainder, plaintiff was compelled to expend $264.55 for medicine and labor in connection with their treatment.
The answer, in substance, denies the alleged representations, and, as an affirmative defense, sets up that plaintiff knew there had previously been an outbreak of cholera and mixed infection among defendant's hogs but that the ones purchased had been vaccinated therefor. There was further an allegation that defendant had been advised by competent authority that it was safe and proper to sell the hogs, and defendant sold them under such belief.
There has been before this court quite recently another case involving a sale by defendant of hogs alleged to have been infected with cholera or septicemia. In that case we laid down the law governing actions of this nature as follows:
"The case is based upon fraud and deceit, and to sustain such an action it is necessary, first, that the representation by appellant that the hogs were not affected with cholera or had not been exposed to it was made as a statement of fact second, that it was untrue; third, that it was known by the appellant to be untrue, or made in reckless disregard of its truth; fourth, that it was made with intent to deceive...
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