Canham v. Bruegman

109 N.W. 733, 77 Neb. 436, 1906 Neb. LEXIS 92

• Court: Nebraska Supreme Court
• Decided: November 10, 1906
• Docket: No. 14,415
• Status: Published

Opinion

Ames, C.

This is an action by tbe vendee of a team of borses against tbe vendors thereof to recover damages on tbe ground that at tbe time of tbe sale and delivery of the animals they were, without tbe knowledge of tbe plaintiff, infected with a certain malignant and contagious disease, known as “glanders,” of which both of them soon afterwards died, after having communicated tbe disease to a certain other animal belonging to tbe plaintiff which, in consequence thereof, died. A general demurrer to the petition having been overruled, the defendants elected not to plead further, and the amount of the plaintiff’s damages having been agreed upon by the parties, other evidence with respect thereto was waived, and the court rendered a judgment for that sum, from which the defendants appealed.

The statute, section 3171, Ann. St., enacts: “It shall not be lawful for any person to use, let, sell, or permit to run at large any horse, mule, or ass diseased with glan-ders. Any person violating the provisions of this section shall pay a fine of not less than five nor more than fifty dollars, and shall be liable for all damages.” The sole ground for the contention that the petition does not state a cause of action is that it omits to aver that before or at the time of the sale and delivery of the horses the vendors had knowledge of their diseased condition. The statute quoted, which contains no express exception and has reference to but one disease, was passed in 1867 and has never, unless by implication, been repealed. In 1883 another act was adopted, making it a misdemeanor punishable by fine and imprisonment to import into the state, or to sell, transfer or to permit to run at large, any animal infected with any infectious disease, and rendering any person knowingly violating any of the provisions of the act liable in a civil action for all damages resulting from such violation. It is argued that the two acts are not necessarily in conflict, the later of them being general in its scope and having reference to all animals and to all infectious diseases, while the former is special and specific, both as to a single disease and with respect to the animals subject to infection with it, and, hence, it is inferred that the legislature intended a different and more absolute rule of liability in cases of glanders than is imposed by the later enactment. However this may be, we think that under the liberal rules of pleading and procedure provided by the code, a petition in such a case is sufficient if it alleges the cause of action in the language of the statute. Knowledge, in the absence of all other evidence, may well enough be inferred by the court and jury, as it would be by most other persons, from the commission of the prohibited act. And the rule in such cases is that, in a civil action, it is sufficient to declare in the language of the act, unless there is an exception which the plaintiff is required to negative.

We recommend that the judgment of the district court be affirmed..

Oldham and Epperson, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of -the district court he

Affirmed.