Furley v. Chicago, Milwaukee & St. Paul Railway Co.

23 L.R.A. 73, 90 Iowa 146

• Court: Supreme Court of Iowa
• Decided: January 31, 1894
• Status: Published

Opinions

Rothrook, J.

It appears from the record that on June 22, 1890, one Nathan L. Brown shipped from Long Beach, on the Golf of Mexico, six miles east of Pass Christian, in the state of Mississippi, a car load ■of emigrant movables, consisting of household goods, .a horse, and a cow, to a station on defendant’s road at Elberon, Tama county, in this state. Brown accompanied the car, and' remained in charge of its contents, throughout the journey. The car was billed through ■from the starting point to its destination, and it was transported over connecting lines until it reached Port Byron Junction, in the state of Illinois, where it was •delivered to the defendant, to be forwarded over defendant’s road to its destination. When the car arrived at Elberon, which' was about June 27, 1890, Brown unloaded and took away his property. He turned the cow into a pasture with plaintiffs’ cattle, and it is claimed by the plaintiffs that their cattle contracted the disease known as ‘‘Texas fever” from said cow, and that by reason thereof about thirty-two of plaintiffs’ cattle died. The defendant filed an answer in two counts. The plaintiffs demurred to' the second count •of the answer. The court sustained the demurrer. The trial proceeded upon the petition and the first count in the answer. The main contention on the trial, after the demurrer was sustained, appears to have been on the question whether the plaintiffs’ cattle •died from Texas fever by contagion from the said cow j owned by Brown, or from some other disease.

It is conceded by counsel for the respective parties that the principal question on this appeal is whether the demurrer to the second count of the answer was rightly sustained. We will, therefore, proceed to a consideration of that question. The defendant, in the second count of the answer, admits that it received the car at Port Byron Junction in the state of Illinois, with a waybill of said car and contents, and that said cow and other property were shipped from Long Beach, near Pass Christian, Mississippi. The defensive part of the answer is as follows: “And defendant further avers that at no time while said car and stock were so in its possession or under its control, whether in transit or otherwise, did it have any knowledge or information whatever, of any nature or degree, that said cow was in such condition as to infect with or to communicate Texas fever to other cattle, or to plaintiffs’ cattle; that, if such cow was then in that condition, such fact was utterly unknown to this defendant, and could not have been discovered by it with the means then at its command, or in the exercise of such care on its part as was required by law, under the circumstances ; that this defendant exercised all due care and caution on its part, and had neither knowledge nor means of knowledge that said cow, when so brought within the state of Iowa, or when delivered at Elberon, was diseased, or was in such condition as to infect with or to communicate to other cattle Texas fever, as alleged in plaintiffs’ petition, and it was not negligent in that respect.” There were several paragraphs in the demurrer, separately numbered; but there was really only one ground upon which it was claimed that the answer was vulnerable to the demurrer. It is clearly .stated in the seventh paragraph, which is as follows: “The statute of Iowa expressly prohibited any person from bringing into this state cattle in such a condition as to infect with or to communicate Texas fever to other cattle. Defendant, in the said second count of its answer, admits, by implication, the violation of this statute, but pleads, as a defense and excuse, that it acted in ignorance and without information as to the condition of the animal in question; and the admission of the defendant that it violated the law of this state is not excused by an allegation of want of knowledge or information, nor that it acted in violation of law in ignorance of its provisions, and exercised care in the premises.” It will be observed that the demurrer is as broad as the answer, and the question presented is, is the defendant absolutely liable to the plaintiffs, notwithstanding the fact that its agents and employees had no knowledge or information of the condition of the cow, and that the said condition could not have been discovered by the exercise of proper care and caution, and that the defendant was not negligent in receiving the car, and transporting its contents to their destination. The ruling on the demurrer precluded the defendant from showing that it exercised all proper care and caution, and was not chargeable with negligence; and the charge to the jury was to the effect that if the cow was, at the time of shipment, in such condition as to infect with or communicate Texas fever to other cattle, and did communicate the disease to plaintiffs’ cattle, from which disease they, or some of them, died, the defendant was absolutely liable for damages.

The question is to be determined by the construction placed on chapter 156 of the Acts of the Twenty-first General Assembly, which is amendatory to, or rather substituted for, sections 4058 and 4059 of the Code. The second section of the act, which is designated as section 4058, prohibits any person or corporation from importing any cattle into this state which, at the time of such importation, are in such condition as to infect with or communicate to other cattle pleuro-pneumonia, or splenic or Texas fever. It makes the violation of the law a misdemeanor, and visits the offender with a fine of not less than three hundred dollars and not more than one thousand dollars, or by both fine and imprisonment in the county jail not exceeding six months, in the discretion of the court. The third section of the act is as follows: “Any person who shall be injured or damaged by any of the acts of the persons named in section 4058, and which are prohibited by such section, in addition to the remedy therein provided, may bring an action at law against any such persons, agents, employees or corporation mentioned therein, and recover the actual damage» sustained by the person or persons so injured, and neither said criminal proceeding nor said civil action shall in any stage of the same be a bar to a conviction or to a recovery in the other. This statutory provision does not appear to us to be essentially different, so far as the rule of liability thereunder is involved, from that part of .section of 1289 of the Code which was under consideration by this court in the case of Small v. Railway Co., 50 Iowa, 338. That provision is as follows: “Any corporation operating a railway shall be liable for all damages by fire that is set out or caused by operating of any such railway, and such damage may be l’ecovered by the party damaged in the same manner as set forth in this section in regard to stock, except as to double damages.” It was held in the case above cited, that this does not create an absolute' liability, but makes the fact of an injury so-occurring only •prima fade evidence of negligence, which may be rebutted by a showing of. freedom from negligence. It is true that, the decision in that case was made by a divided court; but the rule of the majority has. since been followed in very many cases. See Slosson v. Railway Co., 51 Iowa, 294, 1 N. W. Rep. 543; Libby v. Railway Co., 52 Iowa, 92, 2 N. W. Rep. ; Babcock v. Railway Co., 62 Iowa, 593, 13 N. W. Rep. 740 and 17 N. W. Rep. 909; Rose v. Railway Co., 72 Iowa, 625, 34 N. W. Rep. 450; Seska v. Railway Co., 77 Iowa, 137, 41 N. W. 596; Engle v. Railway Co., 77 Iowa, 661, 37 N. W. Rep. 6, and 42 N. W. 512; Greenfield v. Railway Co., 83 Iowa, 270, 49 N. W. Rep. 95. And since the decision was made in Small’s case there have been six regular sessions of the general assembly, and we are not aware that at any time there has been any proposition introduced looking to an amendment of this statute, so as to make the liability for setting out fires absolute. Under such circumstances, it would be an amazing departure from a long line of decisions to hold that the construction adopted in Small’s case is not the settled law of this state, as expressed by this court, and as enacted by the lawmaking power. As we have said, the statute declaring liability for setting out fires, so far as the question of its absoluteness is involved, is not. different from the statute applicable to this case. We need not here set them, out side by side. They are assentially the same, as will appear by any fair examination of their provisions. It is provided by a statute of the state of Kansas as follows: “That no person or persons shall drive or cause to be driven into or through any county in this state, any cattle diseased with the disease known as Texas, splenic, or Spanish fever. Any person violating any provision of this act shall on conviction be adjudged guilty of a misdemeanor, and shall be fined not less than one hundred and not more than one thousand dollars, and be imprisoned in the county jail not less than thirty days and not more than one year.” Another section of the same act is as follows: “Any person or persons who shall drive or cause to.be driven into or through any county in' this state any of the cattle mentioned in section one of this act, in violation of this act, shall be liable to the party injured for all damages that may arise from the communication of disease from the cattle so driven to be recovered in civil action, and the party so injured shall have a lien upon the cattle so driven.” In the case of Patee v. Adams, 37 Kan. 133, 14 Pac. Rep. 505, it was held that in an action to recover damages under this statute it was essential for the plaintiff to allege and prove that the defendant knew, or had reason to know, that the cattle so driven were diseased with the fever, or were liable to communicate the disease to the domestic cattle of the state. It will be observed that the statute involved in that ease is not essentially different from our own. They both declare a liability in general terms, without any language importing an absolute liability. The cited case goes much further than Small’s case, or than we do in the case at bar, and holds that the burden of proof of knowledge or negligence is on the plaintiff. Patee v. Adams, supra, was followed and approved in Railway Co. v. Finley, 38 Kan. 350, 16 Pac. Rep. 951. Counsel for appellee admit that the cited cases involve the same question which we are considering. It is to be conceded that a contrary rule has been adopted in the state of Missouri. See Wilson v. Railway Co., 60 Mo. 184, and Surface v. Railway Co., 63 Mo. 452. In our opinion, the rule of the Kansas cases is in line with the better principle.

But it is claimed by counsel for appellee that the question has, in effect, been determined by this court; and we are cited to the cases of Jamison v. Burton, 43 Iowa, 282; Dudley v. Sautbine, 40 Iowa, 650; State v. Thompson, 74 Iowa, 119, 37 N. W. Rep. 104; and State v. Cloughly, 73 Iowa, 626, 35 N. W. Rep. 652. These and other cases which have been decided by this court are mainly prosecutions for violations of the prohibitory liquor law of this state by selling beer to minors and inebriates, and it. is held that want of knowledge of the age or habits of the purchaser is no •defense. The principle upon which the cases rest is that the avocation of the vendor of intoxicating liquors is unlawful, except under certain circumstances, and that, when he sells, he assumes the burden of knowing that these circumstances exist, and sells his liquor at his peril. It is a general rule that mere ignorance of fact will not excuse a person from a penalty provided by statute. 3 Grreenleaf on Evidence, section 21. But that principle can have no application to one who, in the pursuit of a lawful calling, and in the exercise of proper care and caution, does an act contrary to some statutory requirement. The theory of appellee is that defendant committed a criminal act, the violation of which is punishable by fine and imprisonment, and that, as it could make no successful defense to a •criminal prosecution, it is absolutely liable for the damages occasioned by the criminal act. This is not an absolute rule. The law is well settled that, when a railroad train is operated through a city at a rate of speed prohibited by law or ordinance under a penalty, there is no absolute liability to a person injured by reason of the violation of the law or ordinance. It may, in such case, be shown that the person injured contributed to cause the injury by his own negligence. The application of the principle contended for to the facts of this case, it appears to us, shows conclusively that the defendant should have the right to prove, if it can, that it was free from negligence in receiving1 and transporting the car over its road. There is no hardship to plaintiffs in adopting this rule. The ease is •exceptional in its facts. It was not an ordinary shipment of live stock, which would put the employers on inquiry as- to whether the animals were such as come within the provisions of the statute. The cow was not ■bred in the south. The owner of the property was a resident of this state. In the fall of the year previous to the shipment complained of, Brown went to Long Beach, to remain during the winter. He shipped his cow, with certain household goods, to that place, and the alleged cause of action arose when he reshipped the property to this state in the spring following. There was nothing in the appearance of the cow indicating that she had any disease. The fact appears to he that she was not diseased. She was milked during all the time she was in the south, and after she was returned to this state, and the milk was used by Brown’s family. In the autumn of the following year she was fattened and slaughtered, and her flesh was used for food. There is evidence, however, to the effect that an animal acclimated in the south, and removed to this state, may communicate the Texas fever to cattle here without showing any evidence of the disease itself. In view of this claim, and in consideration of the fact that the defendant, as a common carrier, is bound to receive and transport freight offered for shipment, it would be unjust and unreasonable to require that it be absolutely liable to pay all damages arising by reason of the carrying of animals that may communicate contagious diseases, without allowing it to be shown that the carrier had no notice, and could not, by the use of reasonable care, have ascertained, that the animal belonged to the class, the transportation of which is forbidden by the statute. We think the statute under consideration does not impose any such absolute liability. The business of a common carrier is not only lawful, but it is absolutely essential as an agency in the transaction of the business interests and commercial affairs of the country. Under the facts of this case, the claim of appellee, in the face of the facts pleaded in the answer, is that the defendant was bound at its peril, before receiving the car, to ascertain that the animal was not in such condition as to communicate the disease to other cattle. Under the law of this state and the act of congress known as the ‘ ‘Interstate Commerce Law,” the defendant was bound to receive freight in car lots, and haul it to its destination. McClain’s Code, section 2039; U. S. Stat. 1885-87, page 379. And the nature of the freight in this case' was such that the defendant was bound to act promptly. It was liable to an action for damages, if it failed to so act. The contention of plaintiff is that there is a liability to fine and imprisonment and damages for receiving and hauling the car. Suppose that the defendant was a natural person, and should be indicted, and he should offer to prove the facts set up in this answer; we think there ought to be no question that it would be a great error to reject the evidence, and hold the defendant guilty of a crime, and imprison him in a county jail for six months, and fine him one thousand dollars. There is nothing in either the letter or the spirit of the statute which would sanction any such proceeding. The case is essentially different from those arising upon such police regulations as are enacted for the purpose of regulating dramshops, gambling houses, and the smuggling of goods, and the like. Counsel for appellee, in their argument in this court, say that, if the construction of the statute which we have adopted is to prevail, “it will at once become a dead letter, and may as well be repealed.” We think the fears of counsel are groundless. As we have said, the case at bar is exceptional in its facts. We hold that the defendant should be allowed to show that it was blameless, if it can make such a showing. The rule in the Small case left that statute in full force, and recovery has been had under that law in a large number of cases, as the reports of the decisions of this court will show. The judgment of the district court is REVERSED.

Kinne, J., took no part'in the decision of this case.