Robinson & Reynolds v. Atlantic Coast Line Railroad , 28 Ga. App. 484 ( 1922 )

Hull, J.

Robinson & Reynolds, at Donalsonville, in Seminole county (formerly Decatur county), Georgia, delivered to tbe Atlantic Coast Line Railroad Company forty head of cattle for transportation to Montgomery, Alabama, and they were there delivered at the stock-yards to Tatum, Embry & Company. Robinson & Reynolds were not authorities on tick eradication or quarantine regulations which were in force in the said county at the time of this shipment, the same being carried on co-operatively by county, State, and Federal authorities. At Donalsonville the Federal government had an officer, a veterinarian, in charge of such work, in whom, under the Federal act, was duly vested all the administrative and quasi-judicial duties incident to the enforcement of the' statute on quarantine and tick eradication, and the enforcement of the rules and regulations passed by the Department of Agriculture under and by virtue of the authority vested in it by the statute. The plaintiffs presented the said cattle to this officer, who, after due inspection of the same, issued therefor what is known as a “free certificate,” which was attached to the waybill, and the material portions of which were as follows: “ This certifies that 40 cattle, originating in the county of Decatur, have been inspected by me and found free from any symptoms of scabies (mange), Texas fever, and have been dipped once in arsenical solution on May 1st, 1920, and may be shipped for slaughter. (Signed) A. P. Abbott, Inspector.” This certificate is a part of the brief of the evidence in the case. The cattle, after having been duly inspected, were delivered to the Atlantic Coast Line Railroad Company, as above stated, for the purpose of delivery to the consignees at their stock-pens in Montgomery,. Alabama. Decatur county (or Seminole county), from which these cattle were shipped, was a quarantined area, under the regulations, as stated above, of the government and its official in charge. The cattle, after having been delivered to the defendant company, and, according to the evidence, without exposure to infection, were transported to Montgomery, and were there held for seven days by the company, and the company, without consulting the official in charge of the quarantine regulations at Montgomery, instead of delivering the cattle, upon their arrival at Montgomery, into the free or non-quarantined pens to which they had been consigned by the plaintiffs, had the cattle dipped for tick eradication in Montgomery, under the view of the law, apparently entertained by the railroad company, that the first dipping of the cattle, which had taken place at Donalsonville, when they were shipped, was not sufficient, and that the law required a second or final dipping. The plaintiffs claimed that during the seven days, while the cattle were being held, by the railroad company for the second dipping the market value of cattle generally went down, and they sought to recover the alleged amount of the consequent loss, and also the amount of certain items of expense for feeding and dipping the cattle a second time, claiming that the second dipping was not necessary, and that the expenses connected therewith were illegally incurred, and that the plaintiffs were damaged in the sum of $523.12.

There is no dispute in the record or.the brief of the evidence as to the correctness of the items of expense incurred in feeding and dipping the cattle at Montgomery, provided the railroad company was authorized to hold the cattle for the seven days without delivery and have them dipped a second time. In other words, the holding of these cattle for the second dipping, if required by law and the regulations of the Bureau of Animal Industry, would give the plaintiffs no claim against the railroad company for this work. The controlling question in the case is whether the holding of the cattle by the railroad company at Montgomery, Alabama, .and giving to them a second dipping before the delivery of them into the non-quarantined pens at Montgomery, to which they were duly consigned, was proper under the law and the regulations of the Bureau of Animal Industry. The learned judge who tried the case entertained the view that the second dipping was necessary and proper and was in accordance with the regulations of the department, and, on motion of counsel for the defendant, at the conclusion of the evidence he directed a verdict in favor of the plaintiffs for $20.50, which was the value of one of the cows killed in the pens at Montgomery, and for costs. The plaintiffs filed a motion for a new trial, claiming that the damages amounted to $523.12, and insisting that the second dipping was wholly unwarranted by law and the regulations of the department, and that the expense connected therewith was an unjust imposition upon the plaintiffs as the owners of the cattle. This motion was denied, and the judgment is here for review.

The learned counsel for both the plaintiff in error and' the defendant in error argued the case at great length. After giving the questions involved a very careful consideration, this court is of the opinion that the trial judge erred in directing the verdict as rendered. We think, under the law and regulations of the department, that the railroad company at Montgomery was not authorized to make the second dipping of the cattle, and (without following the learned counsel fully into the arguments which they have submitted) we are of the opinion that the case is controlled by certain regulations of the Department of Animal Industry on the subject of tick eradication.

1. We think that the certificate issued by the inspector at the point of shipment, at Donalsonville, showed a sufficient dipping of the cattle and rendered unnecessary the second dipping. In 32 Statutes' at Large of the United States, p. 791, among other provisions are the following: “ Whenever any inspector or assistant inspector of the Bureau of Animal Industry shall issue a certificate showing that such officer had inspected any cattle or other live stock which were about to be shipped, driven, or transported from such locality to another, as above stated, and had found them free from Texas, or splenetic, fever infection, pleuro-pneumonia, foot-and-mouth disease, or any other infectious, contagious, or communicable disease, such animals so inspected and certified may be shipped, driven, or transported from such place into and through any State or Territory, including the Indian Territory, and into and through the District of Columbia, or they may be exported from the United States without further inspection or the exaction of fees of any kind, except such as may at any time be ordered or exacted by the Secretary of Agriculture; and all such animals shall at all times be under the control and supervision of the Bureau of Animal Industry of the Agricultural Department for the purpose of such inspection. ” It is admitted in this case that the inspector at Donalsonville, after making an inspection of the cattle in question, made the certificate set out above and that the cattle were shipped thereunder to Montgomery. This section plainly asserts that after cattle are shipped from a tick-eradication area and are certified as free by the agent of the bureau, any future inspection shall be by and under the control of the Department of Agriculture. It provides that where animals have been inspected by the inspector or the assistant inspector of the Bureau of Animal Industry and his certificate given that they are free from disease, they may be shipped from one State to another without any other or further inspection; and this provision was intended to permit, the transportation of animals so inspected from one State to another without being subject to any other inspection pursuant to State laws. Of course, the Bureau of Animal Industry could require a second inspection and a second dipping at the destination, if proper.

When the cattle reached Montgomery, instead of being placed in non-infectious pens, to which they had been assigned, they were held up by the railroad for seven days, and then, by the railroad authorities, dipped a second time; and this was done without any inspection by the government inspector who was in charge of the stock-yards or quarantine regulations at Montgomery. There was no evidence offered by the railroad company that the cattle were infected when they reached Montgomery. No charge was ever made to that effect. This being so, the act of the railroad authorities at Montgomery in subjecting the cattle to a second dipping was unnecessary, and the expense therein incurred was an unjust charge against the owners of the cattle. While we are of the opinion that, under the laws and regulations of the Department' of Animal Industry, in view of the certificate of the inspector at Donalsonville, the second dipping was unnecessary, and while we think that the statute quoted above is controlling on the question, and that it would be clearly contrary to the whole scheme of government regulation for any dipping or tick eradication to be carried on except under the direction of the government, and that the action of the railroad authorities at Montgomery, in undertaking the second dipping without consulting the government, was without authority, we are impressed with the fact that the railroad authorities at Montgomery acted in perfect good faith and under the impression that the second dipping was authorized and was necessary under the law.

2. There is another controlling question in this case. It will be-noted, from the certificate of the inspector issued at Donalsonville, that the cattle in this case were shipped for “ immediate slaughterand while this is not stressed by the plaintiffs in error, it would seem that the second dipping was rendered wholly unnecessary by the fact that the shipment of cattle was for immediate slaughter. Paragraph 3 of section 2 of Bureau of Animal Industry Order No. 263, covering the interstate movement of live stock, is as follows: “ Cattle of herds of the quarantined area, which are not diseased with scabies, may be shipped, transported or otherwise moved interstate for immediate slaughter upon inspection by a bureau inspector and when accompanied by a certificate from such inspector. ” The evidence is undisputed that these forty head of cattle were shipped upon inspection by the bureau at Donalsonville, who issued the certificate that said cattle were free from scabies. Certainly the fact that the cattle were to be immediately slaughtered upon reaching Montgomery would seem to render the second dipping wholly unnecessary, unless the cattle had been exposed on the way to Montgomery; and the evidence is clear that such was not the ease. The evidence .is further clear that when the cattle reached Montgomery they were entirely free from scabies and in good condition. Without considering this matter further, this court is of the opinion that the law cited above is controlling, and that the second dipping by the railroad authorities at Montgomery was unwarranted, and that the owners of the cattle, the plaintiffs in error, are entitled to recover from the railroad authorities such expenses as were incidental to the unwarranted dipping, arising from the act itself and from feeding and keeping the cattle during the seven days before they were dipped at Montgomery, and the incidental losses on the cattle. For these reasons we think that the judgment of the trial court was erroneous, and that the plaintiffs should be allowed to prove to the jury such charges, incidental to the said act of the railroad company at Montgomery, to which they were subjected.

Judgment reversed.

Jenkins, P. J., and, Stephens, J., concur.