People v. Davis

Appellate Division of the Supreme Court of New York

People v. Davis

189 A.D. 301, 178 N.Y.S. 433, 1919 N.Y. App. Div. LEXIS 4649

Appellate Division of the Supreme Court of the State of New York·Decided November 12, 1919·Published

Opinions

Cochrane, J.:

The complaint alleges four separate causes of action arising out of the conduct of the defendant, a veterinarian, in making an examination of four groups or herds of cows, and condemning one in each group as tubercular, without having made any report to the Commissioner of Agriculture, as required by the Agricultural Law. Section 98 of the act

* provides that “All veterinarians in the State shall immediately report to the Commissioner of Agriculture the existence among animals of any infectious or communicable disease coming to their knowledge,” and the action is brought to recover the penalties provided in the act (§ 52) for a violation of its provisions.

The defendant admits having made a physical examination of the cows in each case, but denies that they were afflicted with tuberculosis, or that he condemned them for having the disease. There is evidence, however, that the defendant did declare to the several owners and persons in interest that the condemned cows were tubercular, and this fact has been found against him by the jury. It is nevertheless admitted that the animals in question were not diseased.

Section 98 of the Agricultural Law requires veterinarians to report “ the existence among animals of any infectious or communicable disease coming to their knowledge.” It being admitted that these cows were not diseased, there was nothing to report. It may be that there should be a statute requiring a veterinarian to report his suspicions or his diagnosis, but that is a matter for the Legislature. Clearly one cannot report the existence of that which does not exist. The statute only creates liability for a failure to report the existence of disease and not the belief or opinion of the veterinarian that such disease exists.

The judgment, therefore, should be reversed.

All concurred, except Woodward, J., dissenting with a memorandum in which Lyon, J., concurred.

Since repealed by Laws of 1917, chap. 660. See Agricultural Law, § 93, as added by Laws of 1917. chap. 660.— [Rep.

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Cochrane, J.:

The complaint alleges four separate causes of action arising out of the conduct of the defendant, a veterinarian, in making an examination of four groups or herds of cows, and condemning one in each group as tubercular, without having made any report to the Commissioner of Agriculture, as required by the Agricultural Law. Section 98 of the act

* provides that “All veterinarians in the State shall immediately report to the Commissioner of Agriculture the existence among animals of any infectious or communicable disease coming to their knowledge,” and the action is brought to recover the penalties provided in the act (§ 52) for a violation of its provisions.

The defendant admits having made a physical examination of the cows in each case, but denies that they were afflicted with tuberculosis, or that he condemned them for having the disease. There is evidence, however, that the defendant did declare to the several owners and persons in interest that the condemned cows were tubercular, and this fact has been found against him by the jury. It is nevertheless admitted that the animals in question were not diseased.

Section 98 of the Agricultural Law requires veterinarians to report “ the existence among animals of any infectious or communicable disease coming to their knowledge.” It being admitted that these cows were not diseased, there was nothing to report. It may be that there should be a statute requiring a veterinarian to report his suspicions or his diagnosis, but that is a matter for the Legislature. Clearly one cannot report the existence of that which does not exist. The statute only creates liability for a failure to report the existence of disease and not the belief or opinion of the veterinarian that such disease exists.

The judgment, therefore, should be reversed.

All concurred, except Woodward, J., dissenting with a memorandum in which Lyon, J., concurred.

Since repealed by Laws of 1917, chap. 660. See Agricultural Law, § 93, as added by Laws of 1917. chap. 660.— [Rep.

People v. Davis, 189 A.D. 301, 178 N.Y.S. 433, 1919 N.Y. App. Div. LEXIS 4649 (N.Y. Ct. App. 1919).

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