Mount v. Hunter

Mr. Justice Walker delivered the opinion of the Court l This was an action on the case, brought by appellee, in the Logan circuit court, against appellant. The ground of recovery was the turning of appellant’s sheep, affected with a contagious disease, upon the open prairie with appellee’s sheep, whereby they became diseased. The action was brought under the 2d section of the act of February 16, 1865. (Sess. Laws, p. 126.) It declares, "If any person shall staffer to rub at large, or keep in any place where other creatures can have access to, and become infected, any sheep known to the owner or person having the care or possession thereof, to be affected with any contagious disease, such person shall be liable to pay all damage that may result from the running at large of such diseased sheep.” On a trial in the court below, the jury found the issues for the plaintiff, and assessed his damages. Motions for a new trial and in arrest of judgment, were entered, but were overruled by the court, and a judgment was rendered on the verdict. It is first urged, that the declaration is so defective, the judgment should have been arrested. The grounds urged, are, that the suit is for a penalty, and debt, and not case, is the proper form of action, and that the declaration does not conclude against the form of the statute. One of the divisions of statutes is remedial and penal. A remedial statute has for its object either to redress some existing grievance, or to introduce some regulation or proceeding conducive to the public good. The remedy for the breach of a remedial statute, is by an action for damages sustained from such a breach, at the suit of the party injured. A penal statute imposes a penalty upon the commission of the prohibited offense, which is recovered by an action of debt, in the name of the informer, for his own use, or qui tam. The statute fixes the amount of the penalty, and hence the action of debt is appropriate, while in actions under remedial statutes, the party injured recovers the amount of injury he has sustained by a breach of the statute, and case is generally the appropriate remedy. These distinctions are elementary, and require the citation of no authorities for their illustration. This statute has declared no forfeiture, but simply prohibits the act and gives an action to recover the damages sustained by its violation. It, therefore, falls within the definition of a remedial statute, and as the act has not required any other form of action to be brought, case is the appropriate remedy. As regards the objection that the declaration fails to conclude against the form of the statute, the action not being penal it was not necessary to refer to the statute. It is, at most, formal, and is cured by verdict, and can not be reached by a motion in arrest. In this case, the general issue was filed to the declaration, which formed an issue of fact on every material averment in the declaration, and when such an issue has been formed, a demurrer can not be carried back and sustained to the declaration, as has been repeatedly held by this court. There was, therefore, no error in not sustaining the plaintiff’s demurrer filed to defendant’s pleas, to the declaration, even if the formal objection could have been reached by general demurrer. The demurrer to the third and fourth pleas, was properly sustained. They were under the statute which bars indictments, informations and actions, for the recovery of fines or forfeitures under any penal statute, in one year and six months. We have seen this is not a suit for the recovery of a penalty, nor is it for a fine or forfeiture; hence this statute has no application to this action. It is governed by the general statute of limitations/which bars an action on the case in five years, and not before. It is also urged, that there was a failure of proof that the “scab” is a contagious disease. The evidence shows that appellee’s sheep were healthy and-free from all disease when they first came in contact with appellant’s sheep, and that they soon after became affected with the same disease that appellant’s were then suffering from, and which must have been thus communicated. Whether the disease was or not contagious, was a question for the determination of the jury from the evidence before them, and the conclusion at which they arrived is supported by the evidence. Whether appellee’s sheep contracted the disease from the sheep of appellant, was a question fairly presented to the jury, and they were warranted in finding as they did. There was some contrariety of testimony on the question, and it was the province of the jury to weigh it and to act upon that which they regarded as the most reliable. Having done so, their finding will not be disturbed. It does not lie with appellant, if he caused the injury, to complain that appellee did not seek persons skilled in curing the disease, and have them treated. If such a duty devolved on any one, it was upon appellant; he having caused the injury, was legally and morally bound to repair it, and not impose the duty on a person guilty of no wrong. The evidence all considered, the jury were warranted in their finding, and we fail to perceive that the damages are so large as to require a reversal of the judgment, and it is affirmed. Judgment affirmed.