United States v. Boston & MRR

• Decision Date: 04 February 1941
• Docket Number: No. 3584.,3584.
• Citation: 117 F.2d 424
• Parties: UNITED STATES v. BOSTON & M. R. R.
• Court: U.S. Court of Appeals — First Circuit

117 F.2d 424 (1941)

UNITED STATES v. BOSTON & M. R. R.

No. 3584.

Circuit Court of Appeals, First Circuit.

February 4, 1941.

Alfred G. Malagodi, Asst. U. S. Atty., of Boston, Mass. (Edmund J. Brandon, U. S. Atty., of Boston, Mass., on the brief), for appellant.

Richard W. Hall, of Boston, Mass., for appellee.

Before MAGRUDER and MAHONEY, Circuit Judges, and FORD, District Judge.

MAGRUDER, Circuit Judge.

The United States brought this action to collect from the railroad the statutory penalty imposed by Section 3 of the Cruelty to Animals Act, 34 Stat. 607, 45 U.S.C.A. § 73. This Act forbids carriers to confine animals in cars for a continuous period in excess of 36 hours without unloading the same into properly equipped pens for rest, water and feeding, "unless prevented by storm or by other accidental or unavoidable causes which can not be anticipated or avoided by the exercise of due diligence and foresight". Section 1, 45 U.S.C.A. § 71. Section 3 imposes a penalty upon any carrier who "knowingly and willfully fails to comply" with the preceding requirement, "Provided, That when animals are carried in cars * * * in which they can and do have proper food, water, space, and opportunity to rest the provisions in regard to their being unloaded shall not apply." The statute is set forth more fully in the footnote.¹

Judgment went for the defendant below, and the United States appeals.

Trial by jury was waived. The case was submitted on stipulated facts, including a statement by counsel for the defendant, "read into the record by agreement". 30 F.Supp. 780, 781. The facts agreed upon are as follows:

"At 11:30 A. M. of March 27, 1936, there were delivered to the defendant by a connecting carrier at Bellows Falls, Vermont, two carloads of cattle, one containing 112 calves, and the other 110 calves, both of said cars being consigned to W. W. Bristol at Boston, Massachusetts, and both of which were then and there in transit in interstate commerce. The defendant knew at that time that the calves therein contained had not been unloaded for any period of rest since 4:00 A. M. on March 26, 1936. The defendant, without unloading the aforesaid calves for rest, transported the same to Boston, Massachusetts, where they were unloaded at 2:20 A. M. on March 29, 1936; the period of confinement without unloading being 70 hours and 20 minutes.

"The average age of the aforesaid calves was 6 weeks each, and the average weight thereof was 75 pounds each. The size of car No. 8269, which contained 112 calves, was 40½ × 8½ feet, or 49572 square inches; and the size of car No. 7416, which contained 110 calves, was 36 × 8½ feet, or 44064 square inches. The average amount of space allotted to each calf as confined in car No. 8269 was 442 square inches; and the average amount of space allotted to each calf as confined in car No. 7416 was 400 square inches.

"The amount of space necessary to provide adequate means for rest of a calf weighing 75 pounds while in transit is 579 square inches. If crowded, the amount of space necessary is 471 square inches. The 112 calves in car No. 8269 would require 52752 square inches in order to rest; and the 110 calves in car No. 7416 would require 51810 square inches in order to rest."

In addition, the statement above referred to, read into the record by counsel, purported to set forth the reasons assigned by four employees of the defendant "who felt it inadvisable to remove calves from car". We quote from this statement:

"Why deemed unwise to unload. On account of their weakness and as recalled now that particular afternoon and evening there was a cold drizzly rain. If the animals had been removed from car station force would have been obliged to have carried practically all of them, and on account of the weather felt they would likely receive a chill which would cause death or sickness."

On this record the District Court, 30 F. Supp. 780, 781 found "the facts to be as thus stipulated" and drew the inference that the acts and omissions of the defendant's employees were not done "knowingly and willfully" as that term is used in the statute.

The opinion of the District Court reveals the following as the main reason for the conclusion reached:

"I agree that the mathematics of the case do not conclusively prove a failure to comply. The figures are based on averages, and much would depend on the relative number of animals above or below the average weight. It is not clearly demonstrated whether all of the calves could have rested at one time. Whether the narrow margin between the space provided and the space deemed sufficient can be held to be a substantial violation of the law is, at least, a debatable question.

"It is not necessary, however, to find the answer to this question since a violation is not established unless the acts and omissions complained of were done `knowingly and wilfully'. * * *

"It is doubtful if the essential scienter is shown by the facts. Without ascertaining the exact dimensions of the cars and the weight of each animal, it would not necessarily be apparent to the employees who were on the ground that there was not afforded sufficient space and opportunity to rest."

We think the court below, in the foregoing passage, has misapplied the statute.

"Knowingly and willfully" in Section 3 refers back to failure to comply with Section 1, which prohibits confinement in cars in excess of 36 hours without unloading the animals into properly equipped pens for rest, water and feeding. From the agreed facts it is indisputable that the employees of the defendant knowingly and willfully kept the calves confined in the cars for a period greatly in excess of 36 hours. Their motives may have been good, but none the less they took a decision not to unload the animals. A prima facie liability may, however, be negatived by the operation of the proviso in Section 3, previously quoted. But this proviso has nothing to do with the carrier's state of mind, and can be invoked by the carrier only when it is established as an objective fact that the animals "can and do" have proper food, water, space, and opportunity to rest in the cars. Chicago, B. & Q. R. Co. v. United States, 8 Cir., 195 F. 241. Enforcement of the statute would be greatly impaired if the Government had to show that the employees of the carrier knew that the cars did not afford sufficient space for the animals to get proper rest.

The decided cases have construed the proviso strictly. "Opportunity to rest" means an opportunity to lie down, and the space must be sufficient so that all the animals may lie down at the same time. Erie R. R. Co. v. United States, 2 Cir., 200 F. 406, 408; United States v. Powell, 4 Cir., 65 F.2d 793. Lacombe, C. J., in Erie R. R. Co. v. United States, supra, makes clear the reason for this strict requirement. The burden of proof is on the carrier to establish by way of defense that the space afforded in the cars was in fact sufficient for this purpose. Chicago, B. & Q. R. R. Co. v. United States, 8 Cir., 195 F. 241; New York Central & H. R. R. Co. v. United States, 1 Cir., 165 F. 833, 837. This the carrier failed to establish in the case at bar. The court below apparently thought that the burden was on the...