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GRAYSON V. LYNCH, 163 U. S. 468 (1896)
U.S. Supreme Court
Grayson v. Lynch, 163 U.S. 468 (1896)
Grayson v. Lynch
Argued May 4-5, 1896
Decided May 25, 1896
163 U.S. 468
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.
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'
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
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.
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