Grayson v. Lynch

This was an action originally begun in the district court for the Third judicial district, for the county of Dona Ana, N. M., by the appellees, constituting the firm of Lynch Bros., against the appellants, who are members of the firm of Grayson & Co., for loss and damage to a herd of cattle by a disease known as 'Texas cattle fever,' claimed to have been communicated to them by certain cattle owned by defendants, which had been shipped from infected districts in Texas, and permitted to roam over plaintiffs' range. There were two counts in the declaration, alleging the communication of the disease in two different counties; but in other respects the two counts were alike.

The declaration alleged, in substance: That plaintiffs, being in the peaceable possession of a certain cattle range suitable for pasturage, watering and raising cattle, had pastured and grazed on said lands a large number of meat cattle, which were entirely healthy, and free from any contagious or infectious disease, all of which the defendants knew; and that defendants negligently and willfully, against the remonstrance of the plaintiffs, turned in upon said lands and premises, among plaintiffs' cattle, a large number of their cattle infected with a contagious and fatal disease known as 'Texas cattle fever.' That defendants knew that their cattle were so infected, and were liable to communicate the disease to plaintiffs' cattle; by reason whereof, and through the carelessness and negligence of the defendants, the disease was communicated to plaintiffs' cattle, 400 of which died, and the remainder, namely, 100 head, were rendered worthless in consequence of such disease.

Defendants interposed a general plea of not guilty, and, a jury being waived by an agreement in writing, the case was tried by the district court, which, having heard the evidence and arguments of counsel, found the issue in favor of the plaintiffs, and entered a judgment against the defendants for the sum of $5,200 damages, together with their costs.

Thereupon defendants, after unsuccessfully moving for a new trial, prayed an appeal to the supreme court of the territory, which made a finding of facts substantially to the effect that there were in the state of Texas certain districts which were permanently infected with germs of splenetic fever, Texas fever, or Texas cattle fever, and that Oak and Bee counties were a part of such infected districts; that a part of defendants' cattle were shipped by them from Oak and Bee counties, nd unloaded at Hatch station, in the territory of New Mexico, and were from there driven on foot, along the public road, across the range of the plaintiffs to the range of the defendants, adjoining plaintiffs' range, where they were turned loose to graze with other cattle upon defendants' range; that defendants were notified by plaintiffs, and thus had knowledge of the probable existence of such disease in said infected districts and said counties at the time they drove their said cattle from said counties across plaintiffs' range; that defendants' cattle brought with them the germs of an infections and communicable disease known as 'splenetic' or 'Texas fever,' and communicated such disease to plaintiffs' cattle, either on the public road, on plaintiffs' range, or on defendants' range, and plaintiffs' cattle became infected with the germs of such disease, and thereby sickened, and many of them died, and the plaintiffs sustained damage thereby to the amount of $5,200; that before defendants' cattle were driven across plaintiffs' range, plaintiffs notified defendants that their cattle would be liable to communicate Texas fever to plaintiffs', and requested them to abstain from driving their cattle across plaintiffs' range; that afterwards, and notwithstanding plaintiffs' request, defendants drove their said cattle across plaintiffs' range, in the manner heretofore stated, by reason of which said disease became communicated to plaintiffs' cattle. 25 Pac. 992, 32 Pac. 149.

Upon this finding, the court ordered a judgment to be entered affirming the judgment of the court below, and allowed an appeal to this court.

Mr. Justice Field, dissenting.

T. B. Catron, for appellants.

S. B. Newcomb and S. M. Arnell, for appellees.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.