Opinion
No. 21630.
November 5, 1951.
APPEAL FROM THE CIRCUIT COURT, HARRISON COUNTY, V. C. ROSE, J.
R. Leroy Miller, Trenton, W.V. Mayse, Bethany, for appellant.
Herbert S. Brown, Robert B. Loman, Trenton, Roscoe E. Moulthrop, Bethany, for respondent.
This is a suit for damages alleged to have resulted from defendant selling plaintiff certain hogs which were infected with cholera. Trial resulted in a verdict and judgment for plaintiff in the sum of $1,350.70, from which the defendant appealed.
The only assignment of error is that the court should have sustained defendant's motion for a directed verdict because there was no substantial evidence that the defendant knew or by the exercise of reasonable diligence could have known that the hogs were so infected.
Plaintiff's petition is founded on Sec. 267.440 R.S. 1949, the material part of which reads: "It shall be unlawful for any person to sell or offer for sale any swine in this state which is infected with hog cholera, or any other disease; * * *."
The cases uniformly hold that a suit for damages may be brought for a violation of this statute and, with equal uniformity, they hold that there must be substantial evidence that the seller knew or had reasonable cause to suspect that the hogs were so infected. Shank v. Lesich, Mo.App., 296 S.W. 224; Wells v. Welch, 205 Mo.App., 136, 224 S.W. 120; Hart v. Horine, Mo.App., 34 S.W.2d 524. The petition is drawn on this theory and plaintiff's main instruction submits the case on that theory.
Because of the one assignment of error, we need not review the evidence which tended to support the allegation that the hogs were infected at the time of the sale, and that they communicated this disease to other hogs belonging to the plaintiff, resulting in 38 of his hogs dying to his damage in the amount of the verdict. Defendant does not dispute the sufficiency of the evidence on those issues.
We shall consider the evidence which tends to support the essential element of plaintiff's case, that defendant knew or had reasonable cause to suspect that the hogs were infected. In passing upon the question of the sufficiency of the evidence on this issue, we must keep in mind two well recognized principles of law: (1) that a motion for a directed verdict can be sustained only when the facts in evidence and the legitimate inferences therefrom are so strongly against the verdict as to leave no room for reasonable minds to differ; Kick v. Franklin, 342 Mo. 715, 117 S.W.2d 284; Vol. 27 Mo.Dig., Trial, 142; (2) that plaintiff's case may be made out or aided by defendant's evidence if such evidence is not in conflict with plaintiff's own testimony or with the fundamental theory of plaintiff's case, and that the jury may believe all of the testimony of any witness or none of it, or may accept it in part or reject it in part, just as it finds the same to be true or false when considered in relation to the other testimony and the facts and circumstances of the case. Hutchison v. Thompson, Mo. Sup., 175 S.W.2d 903, 911; Vol. 12, Mo. Dig., Evidence, 592.
The evidence is that defendant was engaged in the buying and selling of hogs and cattle and had barns and pens located on a tract of land he owned adjoining Trenton, Missouri. He had been so engaged for a number of years. Plaintiff's witness, Sommerville, testified that he owned and operated a truck in which he hauled live-stock for defendant on many occasions; that on Saturday morning, August 13, 1949, defendant called him at his home and asked him to come to plaintiff's place of business; that when he arrived he and the defendant "went back in the hog yards, he wanted to look at some hogs there, and he wanted to know if I seen anything wrong with any hogs and I said I didn't see nothing the matter with them; there was several head there. He said I don't see anything wrong with them. He wanted to know if I could go to Chillicothe, I told him not at that time, that I had business up town for a while. * * * He wanted to know if I could go along about noon, and I said far as I know." Sommerville returned to defendant's stock-yards about noon and they loaded 6 hogs in his truck. These were the same hogs about which defendant had previously talked to Sommerville, and at that time defendant asked him if he had noticed anything wrong with them. At the time the hogs were loaded defendant asked Somerville what he would charge to haul them to Chillicothe, and he told him the charge would be $5, whereupon defendant said to the witness: "If you get down there about the time the sale starts, he would give me $5.00 extra." The defendant also told Sommerville to sell the hogs in his (Sommerville's) name at the Community Sale Barn at Chillicothe. The hogs were taken to Chillicothe by Sommerville and sold in his name to the plaintiff. When the hogs were unloaded at his farm one had "diarrhea and passed a couple of worms." The next morning when plaintiff went to feed the hogs he noticed that two refused to eat and were not standing straight on their front legs; one of these hogs died on Tuesday night following the sale, and the other one died on Wednesday night, and about one week later other hogs became sick and he eventually lost 38. A veterinarian determined, by post mortem, that the hogs had cholera. On Thursday, following the sale on Saturday, plaintiff's father went to see the defendant and details their conversation as follows: "Q. What did you say * * * about the sick hogs? A. I says did you know they was sick, he says what's the matter, I said I don't know exactly what is the matter, I says didn't you know someone is going to have to pay for this, he says well I will have to check up and tell you in a day or two where they come from.
"Q. Did he ever do that? A. No. He never talked to me. * * * No, sir, he never spoke to me after that." Witness Sommerville was present at this conversation and testified substantially to the same thing.
Defendant's motion for a directed verdict, at the close of plaintiff's evidence, was overruled and he proceeded to offer evidence in defense of the case. He denied that he owned the 6 hogs, or that he employed Sommerville to haul them to Chillicothe, or directed that the hogs be sold in the name of Sommerville. But defendant gave other testimony which is of vital importance on the question whether the defendant knew or had reasonable cause to suspect that these particular 6 hogs were infected at the time of the sale. Defendant's version of what occurred on Saturday morning, August, 13, is that, at the time, he had no hogs in his pens at Trenton; that he did not call Sommerville to come to his place and haul the hogs for him, but, on the contrary, Sommerville came to his place "between eight-thirty and nine and had six light hogs in the truck, wanted to sell me * * *.
"Q. Did you go out and talk to him? A. Yes, sir.
"Q. What did Mr. Sommerville say to you that morning, if anything? A. Said he had some hogs he wanted to sell me.
"Q. What did you tell him? A. I got up, looked at them, I said no, too light to go to market. * * * I looked at the hogs a few minutes, he told me the hogs wasn't just right after I wouldn't buy them, and I advised him to take the hogs to Chillicothe * * * to Bill Hoyt and get him to sell them subject, I told him he did it for me once when I had one ruptured and he gets what he can * * *.
"Q. Why didn't you buy of Mr. Sommerville? A. He told me they were sick and I would not known it if he hadn't told me they was not just right, * * *." Defendant also produced witness Maloney who testified that Sommerville drove to defendant's place of business on that Saturday morning with some hogs, wanted to sell them to defendant, but defendant "said the hogs didn't look right, he didn't want to buy them." Defendant's witness, Williams, testified that he was present at defendant's place of business that morning when Sommerville drove up in a truck with some hogs and that defendant went out and looked at the hogs and "when he (defendant) came in he told us Archie (Sommerville) had something wrong with the hogs, he couldn't buy them."
Defendant concedes that the evidence as to ownership of the hogs was sufficient to submit that issue to the jury and that the verdict is conclusive on that one issue.
Had defendant stood on his motion for a directed verdict at the close of plaintiff's case, we would be confronted with a serious question whether the evidence made a submissible issue of defendant's knowledge, or reasonable cause to suspect that the hogs were infected. But defendant offered testimony in defense of the action and, at the close of all the evidence, reoffered his motion for directed verdict, which was overruled. Under such circumstances, we can consider only whether the court erred in overruling that motion. Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601, 607; Neely v. Freeze, 240 Mo.App. 1001, 225 S.W.2d 144, 154.
In presenting his one assignment of error, defendant refers to and discusses only the evidence of plaintiff's witnesses and makes no reference to defendant's testimony. By so doing he falls into error. (See cases, supra.)
Defendant's own testimony shows that he knew or had reasonable cause to suspect that the 6 hogs which Sommerville delivered in Chillicothe, and which were bought by the plaintiff, were sick at that time. This evidence did not conflict with plaintiff's own testimony or with the fundamental theory of his case. In fact, it was in accord with plaintiff's testimony and his theory. It is true that the testimony of witness Sommerville and defendant was in conflict concerning who owned the hogs and what was said between them about transporting the hogs to Chillicothe. But, as conceded by the defendant, the jury's verdict settled the issue of ownership. The jury could, and did, disbelieve defendant's testimony as to ownership, but could, and evidently did, believe his testimony that he knew the hogs were sick.
When all the evidence is considered, we think it is amply sufficient to make a submissible case for the jury, and that the court did not err in overruling defendant's motion for a directed verdict at the close of all the evidence. It follows that the judgment should be affirmed. It is so ordered.
All concur.