Opinion
No. 2097
July 11, 1939
DAMAGES — CONTRIBUTORY NEGLIGENCE — GAME AND FISH COMMISSION — DAMAGE TO CROPS BY GAME ANIMALS — ERRONEOUS REJECTION OF CLAIM FOR DAMAGES.
1. Evidence that 20 head of deer entered plaintiff's garden some time during morning while plaintiff was at school and while plaintiff's father, who was his representative to look after garden in his absence, was also absent from vicinity of garden, did not show contributory negligence on part of plaintiff or his father so as to bar recovery against game and fish commission for damages to plaintiff's lettuce crop caused by the deer, where plaintiff had built substantial fence about garden, deer usually came about daybreak and in the evening, and deer had never before come into garden in such large numbers (Laws 1937, c. 64, § 47). 2. The doctrine of contributory negligence does not apply where it appears that the omission or conduct alleged to constitute contributory negligence was in the doing or the not doing of some act or acts in relation to a danger not reasonably to have been apprehended. 3. Claims against the state for damages to property caused by game animals are payable under section of statute providing a fund under control of the commission "for the purpose of carrying out provisions of state game and fish act, and orders of commission" (Laws 1937, c. 64, § 28). 4. Where fish and game commission erroneously rejected plaintiff's claim for damages to his lettuce crop caused by 20 head of deer and district court so found upon plaintiff's appeal, such adjudication by district court, upon a trial de novo, plus an order directing commission to pay the claim, would support a liquidation of claim from fund under control of commission (Laws 1937, c. 64, §§ 28, 47). 5. Evidence justified judgment against the game and fish commission for damages to plaintiff's lettuce crop caused by 20 head of deer, in the amount of $1,320 damages (Laws 1937, c. 64, §§ 28, 47). 6. Supreme Court would not reverse judgment of district court finding game and fish commission erroneously rejected plaintiff's claim for damages to his lettuce crop caused by 20 head of deer on ground that judgment was influenced by prejudice and passion, where action of commission rejecting plaintiff's claim was not based on merits but was on ground that deputy game warden had not approved claim, which ground was not authorized by statute, and district court heard and saw witnesses upon a full trial de novo upon the actual merits of the controversy (Laws 1937, c. 64, § 47).
APPEAL from the District Court, Natrona County; C.D. MURANE, Judge.
Action by Frederick Van Horn, by his parent and next friend, Walter E. Van Horn, against the Wyoming Game and Fish Commission to review a decision of the commission rejecting plaintiff's claim for damages to his lettuce crop caused by 20 head of deer getting into his garden. From a judgment for plaintiff, the commission appeals.
For appellant, the cause was submitted on the brief of Ray E. Lee, Attorney General; Thos. F. Shea, Deputy Attorney General; and Wm. C. Snow, Assistant Attorney General of Cheyenne.
The verdict and judgment are contrary to law. The evidence clearly showed that the respondent was guilty of contributory negligence. It was unnecessary to plead contributory negligence. Railway Co. v. Cook, 18 Wyo. 43. The facts here are identical with the facts in that case. The statute (Chapter 64, Sec. 47, 1937) does not provide for an appeal from the rejection of a claim by the Game and Fish Commissioner. The statute does not provide how such claims are to be paid. Ordinarily they cannot be enforced by court procedure. They are left to the decision of the legislature. 59 C.J. 331. The verdict was contrary to the evidence, which was vague and uncertain as to market value. McGilvra v. Ry. Co. (N.D.) 159 N.W. 854. It is ridiculous to conclude that twenty head of deer could eat 13,000 pounds of lettuce in a period of about six hours. Equally ridiculous is the conclusion that the value of a crop of lettuce grown upon three acres of ground would be approximately $2600.00. Davis v. Judson (Cal.) 113 P. 147; Richey v. Butler (Cal.) 180 P. 652; Bailey v. Niebruger, 211 Ill. App. 82; Kelly v. Jones (Ill.) 125 N.E. 354; Ray v. Railway, 232 S.W. 268; Fuher v. West Morlend Company, 116 A. 61; Radiemenski v. Baltimore O.R.R. Co. (Pa.) 128 A. 735; R. Co. v. Gaddis (Tex.) 208 S.W. 895. The appeal was inconsistent with the claim. The uncertainty of the evidence as to market value left it impossible for a court to fix any definite amount of damages.
For the respondent, the cause was submitted on the brief of Fred W. Layman of Casper.
The practice of inserting in briefs language which tends to bring ridicule on the trial judge or which impugns his motives is considered to be reprehensible and deserving of censure. 3 C.J. 1432. Appellants contend that Chapter 64, Section 47 of the Laws of 1937 is the only statute covering the case at hand, and that it does not make any provision as to how the claim is to be paid. Section 49-103, Laws of 1931, provides that it is the duty of the Board to investigate claims of this class and make settlement payable out of the Game and Fish Fund. It was the duty of the Commission to order the Deputy Game Warden to report whether any damage had occurred through game animals, and on such report being submitted to approve the claim for damages, or to refuse the claim if they believed no damages had occurred. Appellant did not produce evidence that the crop of head lettuce could not be marketed in Casper. The evidence was that the crop could be marketed in Casper; also the market value of the lettuce destroyed was shown by the evidence. Moreover the crop could be shipped to other places, if necessary. Where the value of a staple commodity is in issue, the market value of such commodity at the place where it is destroyed is controlling. Staple commodities are such products as have a special or defined character in the commerce of the country. Keeran v. Griffith, 34 Cal. 580. Appellant's contention that the appellee was guilty of contributory negligence is clearly without merit, in view of the evidence in this case. The most favorable conditions for growing head lettuce are found in mountainous districts. A yield of $450.00 per acre on three acres of head lettuce is a fair and reasonable figure. The judgment below, being fair and just, should be affirmed.
This cause is presented here as a direct appeal from a judgment of the district court of Natrona County.
Laws of Wyoming, 1937, Chapter 64, Section 47, relating to the Wyoming Game and Fish Commission, the first two sentences thereof, reads:
"Any person, firm or corporation whose property is being damaged by any of the game animals of this State shall within ten (10) days' time after knowledge of any such damage, report said damage to the nearest warden, deputy game warden, or member of the Commission.
"Any person, firm or corporation claiming damages from the State of Wyoming for the injury or destruction of property by game animals of this State shall present a verified claim therefor, at the office of the Commission not later than thirty days after said damage occurred, particularly specifying the damage and the amount claimed; all such claims shall be promptly investigated under the supervision of the Commission and rejected or allowed and paid by it in the amount determined as due."
The Section then provides in substance that parties having claims of this character may not recover upon them unless they comply with the provisions of the Section; that when certain named animals are inflicting damage they may be exterminated; that a claimant "aggrieved by the decision" of the Commission may appeal to the district court of the county where the damage occurred, the appeal to be taken in the manner indicated by said Section; that "a trial de novo to the Court shall be had" in such district court, and that the losing party in that trial may bring the case here.
Frederick Van Horn, a minor, during the summer and early fall of 1937 had a truck garden on Casper Mountain, which is situated not so very far distant from the City of Casper. This garden was enclosed with a four or five strand barbed wire fence and gate. The fence had posts about 4 1/2 or 5 steps apart. He had planted three acres of the ground in head lettuce, which was duly cultivated during the growing season of that year. The lettuce matured about the 17th or 18th of September. Frederick left the garden in the care of his father on September 5th to return to the High School in Casper and continue his studies there.
Some trouble had been experienced during the summer with deer jumping the fence and devouring the garden vegetables, but apparently no serious damage had been done, as there is abundant testimony in the record that towards the middle of September the garden was in excellent condition. However, on September 20th, when Walter Van Horn, the father of Frederick, was absent from the vicinity of the garden, between five and six hours, cutting poles, some twenty head of deer got into the garden and practically ruined the lettuce crop. The Deputy Game Warden at Casper was notified, inspected the damage, and it was agreed that fifty per cent of the crop should be taken as the basis for estimating the damage. A verified claim was submitted to the Wyoming Game and Fish Commission, as required by the section of the law above described, on October 12, 1937, by Frederick, in the sum of $1320.00. This claim, as shown by the records of the Commission, was denied by it, the minutes of that body regarding such action reading:
"Commissioner Scott made a motion that claim No. 15 made by Frederick Van Horn in the sum of $1320.00 for deer damage be not allowed on the basis that it had not been approved by a Deputy Game Warden. The motion was seconded by Mr. Johnson and carried."
An appeal was prosecuted by the claimant to the district court aforesaid from the ruling of the Commission and trial de novo had to the court, with the result that the court found that the Commission "should have paid and allowed said claim," and adjudged that Frederick Van Horn should be awarded the sum claimed to be due; that the decision of the Commission should be reversed, and that it be ordered and directed to pay the award thus made, with costs of the suit. That body, through the Attorney General's office, has brought the record here for review.
It is argued for the Commission that the evidence on behalf of the claimant discloses contributory negligence on his part, because his father, his representative who was to look after the crop during his absence in school, left the premises for five or six hours and allowed the deer to ruin the head lettuce acreage. But the trial court found against the Commission in that the latter should have allowed and paid the claim, and there is substantial evidence to support this finding as against the contention of the Commission. As stated above, the entire garden was fenced with a substantial fence and closed gate, which was in the exercise of at least some considerable care on the part of the owner, although the deer it appears would jump the fence.
The proofs show that between the 5th and 20th of September no serious damage was done in the garden, if any. It does not appear either that Walter Van Horn had never before been absent, as he was on the 20th, when the damage occurred. The record does not disclose either that the deer had ever before come into the garden in such large numbers as they did the day it was so seriously injured. There was evidence, too, that these animals usually came just about daybreak in the morning and about 4:30 o'clock in the evening. The evidence establishes that on the 20th the deer were discovered in the garden about 11:00 a.m., when Walter Van Horn returned to prepare his noon day meal. Just when the animals got into the garden does not seem to be known. Evidently, so far as can be told from the record, they were not there when Frederick's father went to his work of cutting poles. We can hardly assume that under all the circumstances, as a matter of law, Walter Van Horn must be held to have known that the deer would come in the forenoon during the time he was absent at work and in such numbers as to destroy the garden. Undoubtedly they had not done so before the date mentioned.
Our attention is directed to the case of Chicago, Burlington Quincy Railway v. Cook, 18 Wyo. 43, 102 P. 657, as a case in point so far as concerns the legal principles applicable to this branch of the case. We cannot agree with this contention. In that case the owner left property enclosed in inflammable paper wrappings, in close proximity to and on the right of way of a railroad, with engines regularly passing back and forth, emitting sparks, and it was there held that she was guilty of contributory negligence in thus exposing the property for a period of three or four days to such hazard. Here, we think the more pertinent principle applicable is as held in Chicago Telephone Company v. Commercial Union Assurance Co., Ltd., of London, 131 Ill. App. 248, that the doctrine of contributory negligence does not apply where it appears that the omission or conduct alleged to constitute contributory negligence was in the doing or the not doing of some act or acts in relation to a danger not reasonably to have been apprehended. In the opinion in that case the decision in Engel v. Smith, 82 Mich. 1, 7, was quoted to this effect:
"It is a sound rule of law that it is not contributory negligence not to look out for danger when there is no reason to apprehend any. Beach Contrib. Neg., 41.'"
In Foreman v. Western Union Telegraph Co., 228 Ky. 300, 14 S.W.2d 1079, the court declared:
"`Contributory negligence is not imputable to any one for failing to look out for danger which he has no reasonable cause to apprehend.' Shearman and Redfield, §§ 90, 653, 654."
Said the Supreme Judicial Court of Massachusetts in Wall v. King, 280 Mass. 577, 182 N.E. 855,
"`One is bound to anticipate and provide against what usually happens and what is likely to happen, but is not bound in like manner to guard against what is unusual and unlikely to happen, or what, as is sometimes said, is only remotely and slightly probable.' Falk v. Finkelman, 268 Mass. 524, 527, 168 N.E. 89, 90."
In Boudreaux v. Ladet, 4 La. App. 415, where the case of Haas v. Director General of Railroads, 150 La. 599, 91 So. 58, a case much like the Cook case, supra, was urged as in point, yet the court said:
"Counsel for defendant contends that plaintiff is likewise responsible for contributory negligence in this case because he had stacked his cord-wood in the swamps, and knew or should have known that tiemakers, hunters and the farmers in clearing their fields might set fire to brush or rubbish which, fanned by strong winds, could spread to the spot where the wood had been corded. The cases are not at all similar. In the Hass case the owner placed the lint cotton, a well-known very inflammable material, next to the railroad track where he knew locomotives were passing and had to pass at every moment. He knew that cinders will, at times, escape from the best and most modern spark arresters, and, having placed the lint in such close proximity to the track, such exposure unquestionably constituted contributory negligence."
It is argued for the Commission that there is no provision in Section 47, supra, as to how the claim made thereunder is to be paid, but Section 28 of said Chapter 64 provides for a fund under the control of the Commission which is "for the purpose of carrying out the provisions of this Act and the orders of the Commission." Where that body acted erroneously upon a claim in denying it, and the district court so finds, such adjudication by the court, upon a trial de novo, plus an order directing the Commission to pay the claim, would seem proper to support a liquidation thereof.
So far as the contention made on behalf of the Commission, that the decision of the court was contrary to the evidence in that the lettuce was worth only forage value and that the market price of said lettuce was not satisfactory proven, it is deemed sufficient to say that while the evidence was conflicting on these matters, we do not find, upon a careful inspection of the record, that there was no substantial evidence to uphold the trial court's conclusions upon it. No useful purpose would be subserved by reviewing in detail the evidence, and we shall not do so. There was evidence, however, that the delivered market price for a dozen heads of head lettuce in Casper at the time the property was destroyed was about ninety cents. Yet the claim actually made to the Commission was for sixty cents a dozen. One reputable witness, a grocery man with years of experience in that business, testified in response to the question, "How does the lettuce from Van Horn compare with other lettuce you purchase?" "I can truthfully say, the little over eight years I have been there, it is the nicest lettuce Casper has ever seen. It is my opinion it is exceptionally nice — I would put it — exceptionally nice." This man had frequently purchased head lettuce grown by the Van Horns and had sold it at retail in his store in Casper. Under the rules governing the consideration of evidence of this character in this court, we are unable to perceive that we could properly disturb the district court's finding and judgment in these respects.
It is said that the court was influenced by passion and prejudice in the rendition of the judgment attacked. As we read the record, it is devoid of any such disclosure. It is apparent that the action of the Commission was not based upon a disposition of the Van Horn claim upon its merits. It is not asserted, nor do we find anything in the statute, which affords any ground for declining a claim of this character on the basis assigned by the Commission for its ruling. The district court heard and saw the witnesses upon a full trial de novo upon the actual merits of the controversy, and we are unable to say that its conclusions were mistaken ones.
Finding no prejudicial error in the record before us, the judgment of the district court should be affirmed, and it will be so ordered.
Affirmed.
KIMBALL and BLUME, JJ., concur.