Grayson v. Lynch
163 U.S. 468 (1896)

Annotate this Case

U.S. Supreme Court

Grayson v. Lynch, 163 U.S. 468 (1896)

Grayson v. Lynch

No. 290

Argued May 4-5, 1896

Decided May 25, 1896

163 U.S. 468

APPEAL FROM THE SUPREME COURT

OF THE TERRITORY OF NEW MEXICO

Syllabus

When the assignments of error are very numerous, it is practically found necessary to consider but a few of them.

A special finding of facts referred to in acts allowing parties to submit issues of fact in civil cases to be tried and determined by the court is not a mere report of the evidence, but a finding of those ultimate facts upon which the law must determine the rights of the parties.

If the findings of fact in such case be general, only such rulings of the court in the progress of the trial can be reversed as are presented by a bill of exceptions, which bill cannot be used to bring up the whole testimony for review.

In cases brought by appeal from the supreme courts of the territories, this Court cannot consider the weight or the sufficiency of the evidence, but only whether the facts found by the court below support the judgment, and whether there was any error in rulings, duly excepted to, upon the admission or rejection of evidence.

The statute of the Territory of New Mexico requiring its supreme court to review causes in which a jury has been waived in the same manner and to the same extent as if it had been tried by a jury makes no essential change in the previous practice, and cannot affect the power of this Court under the Act of April 7, 1874, c. 80, 18 Stat. 27.

If a court can only review cases tried without a jury as it would review cases tried by a jury, it can only review them for errors apparent upon the record or incorporated in a bill of exceptions.

Where a jury is waived, the findings of fact by the court have the same force and effect as the verdict of a jury, and the appellate court will not set aside the findings and order a new trial for the admission of incompetent evidence if there be other competent evidence to support the conclusion.

No variance between the allegations of a pleading and the proofs offered. to sustain it is material unless it be of a character to mislead the opposite party. This rule is applied to sundry assignments of error.

In an action to recover for injuries suffered by reason of disease's being communicated to herds of plaintiffs' cattle through negligence of the defendants in handling and managing their herds of cattle, allegations concerning the particular spot where the disease was communicated are not material, and may be disregarded, especially if never called to the attention of the trial court.

Page 163 U. S. 469

Witnesses not experts may testify as to symptoms observed by them in the progress of the disease.

The plaintiff being in uncontroverted possession of the land on which his cattle were grazing, it is immaterial in this action whether his possession was lawful.

The objections to the admissibility of the testimony of the chief of the veterinary division of the Department of Agriculture, and of others, as experts have no merit.

The court was not bound to find upon the facts that the plaintiff's were guilty of contributory negligence; what care it was necessary for the plaintiffs to take, depended upon circumstances, and was a proper question for the court.

It is to be regretted that the defendants found it necessary to multiply their assignments to such an extent.

This was an action originally begun in the District Court for the Third Judicial District for the County of Dona Ana, New Mexico, by the appellees, constituting the firm of Lynch Brothers, 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'

Page 163 U. S. 470

cattle, four hundred of which died and the remainder, namely, one hundred 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 and 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

Page 163 U. S. 471

drove their said cattle across plaintiffs' range, in the manner heretofore stated, by reason of which said disease became communicated to plaintiffs' cattle.

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 BROWN, after stating the facts in the foregoing language, delivered the opinion of the Court.

In this case, which was tried by the court without a jury, there are fifty-three assignments of error taken to the introduction of much of the testimony and to the finding of the principal facts. As usual when the assignments are so numerous, it will be necessary to consider but few of them.

1. Thirteen of these assignments are taken in different form to the action of the court in holding that, upon a trial by the court, the admission of improper, incompetent, irrelevant, or immaterial evidence was no cause for reversal; that in such case, on appeal, the court will give no weight to such testimony in the determination of such appeal, but will not reverse the judgment because it was admitted unless it appears that the court in making its decision relied upon such irrelevant evidence; that a finding of facts in a case at law, tried without a jury, is conclusive where there is sufficient evidence to found it upon, even though the evidence be conflicting; in refusing to pass upon questions of law and fact apparent upon the face of the record, and in refusing to review the cause and pass upon the evidence as upon a hearing de novo.

The position of the defendants in this connection is that whatever may be the practice in the federal courts under the Revised Statutes, or of the courts in other territories, the laws of New Mexico require the supreme court, in passing upon cases tried in the court below without a jury, practically

Page 163 U. S. 472

to retry the case upon the law and facts, as though it were an appeal in equity.

In support of this, our attention is called to three statutes upon the subject of hearings in the supreme court, by one of which (Compiled Laws, sec. 2060),

"trial by jury may be waived by the several parties to any issue of fact in the following cases: (1) by suffering default by failing to appear at the trial, (2) by written consent in person or by attorney, filed with the clerk,"

and by the second of which (sec. 2190),

"the supreme court, in appeals or writs of error, shall examine the record, and on the facts therein contained alone shall award a new trial, reverse or affirm the judgment of the district court, or give such other judgment as shall be agreeable to law."

There is clearly nothing in these statutes which lays down a different rule from that ordinarily pursued in appellate courts. If the case be tried by jury, and reviewed upon writ of error, the power of the appellate court is limited to affirming the judgment or reversing it for errors apparent upon the record and remanding it for a new trial as specified in this section. If it be an appeal in equity, the court retries the case upon the evidence in the court below, and gives such judgment as may be agreeable to law. No mention is made in this section of common law cases tried without a jury, and we perceive no necessity for our supplying the omission. So far as this class of cases is concerned, they are left to be determined by the legal principles applicable to them in other jurisdictions, and, as regards the federal practice, this Court has held in a series of cases that the special finding of facts referred to in the acts allowing parties to submit issues of fact in civil cases to be tried and determined by the court is not a mere report of the evidence, but a finding of those ultimate facts upon which the law must determine the rights of the parties, and if the findings of fact be general, only such rulings of the court in the progress of the trial can be reversed as are presented by a bill of exceptions, and that in such cases a bill of exceptions cannot be used to bring up the whole testimony for review any more than in a trial by jury. Morris v. Jackson, 9 Wall. 125; Kearney v. Case, 12 Wall.

Page 163 U. S. 473

275; Miller v. Life Insurance Co., 12 Wall. 385; Insurance Co. v. Folsom, 18 Wall. 237; Insurance Co. v. Sea, 21 Wall. 158; Jennisons v. Leonard, 21 Wall. 302; Tyng v. Grinnell,92 U. S. 467; Insurance Co. v. Boon,95 U. S. 117; The Abbotsford,98 U. S. 440.

So too, in cases brought here by appeal from the supreme courts of the territories, we have several times held that we cannot consider the weight or the sufficiency of the evidence, but only whether the facts found by the court below support the judgment and whether there was any error in rulings, duly excepted to, upon the admission or rejection of evidence. Idaho & Oregon Land Co. v. Bradbury,132 U. S. 509; San Pedro &c. Co. v. United States,146 U. S. 120; Smith v. Gale,144 U. S. 509; Mammoth Mining Co. v. Salt Lake Machine Co.,151 U. S. 447.

By the Act of April 7, 1874, c. 80, 18 Stat. 27, the appellate jurisdiction of this Court "over the judgments and decrees of the territorial courts in cases of trial by jury shall be exercised by writ of error, and in all other cases by appeal," with a proviso

"that on appeal, instead of the evidence at large, a statement of the facts in the case in the nature of a special verdict, and also the rulings of the court on the admission or rejection of evidence, when excepted to, shall be made and certified by the court below, and transmitted to the supreme court, together with a transcript of the proceedings and judgment or decree."

It was said in Idaho & Oregon Land Co. v. Bradbury,132 U. S. 509, 132 U. S. 513, that the necessary effect of this enactment was that no judgment or decree of the highest court of a territory could be reviewed by this Court in matter of fact, but only in matter of law or, as was said by Chief Justice White in Hecht v. Boughton,105 U. S. 235, 105 U. S. 236:

"We are not to consider the testimony in any case. Upon a writ of error, we are confined to the bill of exceptions, or questions of law otherwise presented by the record, and upon an appeal, to the statement of facts and rulings certified by the court below. The facts set forth in the statement, which must come up with the appeal, are conclusive on us. Under these circumstances, the form of proceeding to get a

Page 163 U. S. 474

review is not of so much importance as certainty about what is to be done."

Indeed, no great stress was laid by the plaintiffs in error upon the above section of the Compiled Laws, their principal reliance being upon sec. 4, c. 1, Laws 1889, which reads as follows:

"SEC. 4. In all cases now pending in the supreme court or which may hereafter be pending in the supreme court and which may have been tried by the equity side of the court, or which may have been tried by a jury on the common law side of the court, or in which a jury may have been waived and the cause tried by the court or the judge thereof, it shall be the duty of the supreme court to look into all the rulings and decisions of the court which may be apparent upon the records or which may be incorporated in a bill of exceptions, and pass upon all of them, and upon the errors, if any shall be found therein, in the rulings and decisions of the court below, grant a new trial, or render such other judgment as may be right and just and in accordance with law, and said supreme court shall not decline to pass upon any question of law or fact which may appear in the record, either upon the face of the record or in the bill of exceptions, because the cause was tried by the court or by the judge thereof without a jury, but shall review said cause in the same manner and to the same extent as if it had been tried by a jury."

By this statute it is made the duty of the supreme court of the territory to look into and pass upon all the rulings and decisions of the court below which may be apparent upon the record or which may be incorporated into a bill of exceptions, and if any error be found, grant a new trial, or render such other judgment as may be right and just and in accordance with law. And the supreme court must not decline so to do because the case was tried by the court without a jury, but must review said cause in the same manner and to the same extent as if it had been tried by a jury.

It is difficult to perceive wherein this statute makes any essential change in the previous practice, or, even if it did, how it could affect the power of this Court under the statute

Page 163 U. S. 475

of 1874, above cited. It certainly does not in terms require that the court shall rehear the case upon the testimony as if it were an appeal in equity, but limits its powers of review to such questions as are apparent upon the record, or incorporated in a bill of exceptions. And in cases where the cause is tried by the court without a jury, it can only review it in the same manner, and to the extent, as if it had been tried by a jury. Now the Seventh Amendment to the Constitution expressly provides that no fact tried by a jury shall be otherwise reexamined in any court of the United States than according to the rules of the common law, and in Parsons v. Bedford, 3 Pet. 443, 28 U. S. 448, it was said that

"the only modes known to the common law to reexamine such facts are the granting of a new trial by the court where the issue was tried, or to which the record was properly returnable, or the award of a venire facias de novo by an appellate court for some error of law which intervened in the proceedings."

See also Lincoln v. Power,151 U. S. 436, 151 U. S. 438; Railroad Company v. Fraloff,100 U. S. 24, 100 U. S. 31.

The seventeenth section of the act creating New Mexico a territory, Act of September 9, 1850, c. 49, 9 Stat. 446, 452, provides

"that the Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within the said Territory of New Mexico as elsewhere within the United States."

It would seem, then, to be entirely clear that if a court can only review cases tried without a jury as it would review cases tried by a jury, it can only review them for errors apparent upon the record or incorporated in a bill of exceptions. If the statute had said that the supreme court should review the cause in the same manner and to the same extent as if it were a suit in equity, there would be room to contend that the case should be retried upon the testimony, although even in such case the power of this Court would be limited by the act of 1874. But if this power be limited to a review in the same manner and to the same extent as if the case had been tried by jury, its powers are only such as could be exercised upon a writ of error.

Page 163 U. S. 476

We think there is nothing in this statute to take this case out of the general rule, so frequently announced, that in cases where a jury is waived, the findings of fact by the court have the same force and effect as the verdict of a jury, and that the appellate court will not set aside the findings and order a new trial for the admission of incompetent evidence if there be other competent evidence to support the conclusion. The evident purpose of Compiled Laws, sec. 2060, was to give to litigants the option of having their causes tried by jury or by the court, and we think there is nothing in these statutes to indicate that the findings of the court were not intended to have the same force and effect as a special verdict of a jury, and that where there is any testimony to support such findings, the power of the appellate court is limited to determine whether the facts so found are sufficient to support the judgment.

2. Ten assignments are addressed to questions of variance between the declaration and the facts, as specifically found by the court.

(a) The first of these questions relates to the allegation in the declaration that the disease of which the plaintiffs' cattle died, and which was communicated by the defendants' cattle, was known as "Texas cattle fever," whereas the finding of the court was that plaintiffs' cattle died of "Texas fever." In other portions of the finding, however, the disease is spoken of as commonly called "splenetic fever," "Southern cattle fever," "Texas fever," or "Texas cattle fever," and it would appear that it was known by all these names, although the witnesses spoke of it generally as "Texas fever." Assuming that to be its proper designation, defendants could not possibly have been misled, since the introduction of the word "cattle" was evidently intended to indicate merely that it was a fever originating in Texas and prevailing among cattle. While cases may doubtless be found to the effect that descriptive allegations of this kind must be proved with great strictness, the tendency of modern authorities is to hold that

"no variance between the allegations of a pleading and the proofs offered to sustain it shall be deemed material unless it be of a character to

Page 163 U. S. 477

mislead the opposite party in maintaining his action or defense on the merits."

Nash v. Towne, 5 Wall. 689, 72 U. S. 698; Robbins v. Chicago City, 4 Wall. 657; Catlin v. Gunter, 11 N.Y. 368.

(b) A variance is also claimed between the allegation that the disease was a "contagious" one and the finding of the court that Texas fever is not communicated by contact, but is an "infectious" disease. There is doubtless a technical distinction between the two in the fact that a contagious disease is communicable by contact or by bodily exhalation, while an infectious disease presupposes a cause acting by hidden influences, like the miasma of prison ships or marshes, etc., or through the pollution of water or the atmosphere, or from the various dejections from animals. The word "contagious," however, is often used in a similar sense of "pestilential" or "poisonous," and is not strictly confined to influences emanating directly from the body. As applied to Texas fever, the difference would be that if the word were strictly construed, it would follow that the disease must be communicated directly from one animal to another, while if it were infectious, it would be communicated by cattle carrying the germs of the disease from the infected district, and depositing the same upon the range and waters occupied by other cattle susceptible to the infection, so that they would become infected therefrom. This was the finding of the court with respect to the disease in question. The difference is quite immaterial in this case, however, as the allegation of the second count is that plaintiffs' cattle were healthy, and were "especially free from a certain contagious, noxious, dangerous, infectious, and fatal disease commonly known as the "Texas cattle fever;" that with knowledge of this fact, defendants turned upon plaintiffs' land and premises their own cattle, which were "infected with a noxious, dangerous, and fatal disease, commonly known as the "Texas cattle fever." And elsewhere defendants' cattle are spoken of as infected with "the said contagious disease," which they communicated to plaintiffs' cattle. It is evident that the words "infectious" and "contagious" were not used in any technical sense or with any intention of averring that plaintiffs' cattle became ill from a contagious, as distinguished from

Page 163 U. S. 478

an infectious, disease, and that, reasonably construed, it was only intended to aver that defendants' cattle were afflicted with the Texas cattle fever, and that by the negligence of the defendants they communicated it to the plaintiffs' cattle. The general words "contagious," "noxious," "dangerous," "infectious," and "fatal" are evidently intended to be limited by the specific words "Texas cattle fever," and not to raise a medical question whether Texas cattle fever is, strictly speaking, contagious or infectious.

(c) There is also an allegation in the second count that the plaintiffs kept and grazed their cattle on certain lands of which they were possessed in the County of Sierra; that while so grazing upon said lands, defendants drove and pastured their cattle upon these lands, and there communicated to them the disease in question; while the finding of the court in that connection was that it could not be determined

"whether Lynch Brothers

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