{
  "id": 2620294,
  "name": "John H. Herrick v. Jude P. Gary",
  "name_abbreviation": "Herrick v. Gary",
  "decision_date": "1872-09",
  "docket_number": "",
  "first_page": "101",
  "last_page": "105",
  "citations": [
    {
      "type": "official",
      "cite": "65 Ill. 101"
    }
  ],
  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "58 Ill, 246",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        5236482
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/58/0246-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 393,
    "char_count": 8635,
    "ocr_confidence": 0.537,
    "pagerank": {
      "raw": 8.573493557370794e-08,
      "percentile": 0.4885806083675149
    },
    "sha256": "aa94dd4e59ec39ebaa0165998900c2b6f9aa203bc224e0699e15ff5567c56ccf",
    "simhash": "1:b2b24ea17c37a7ad",
    "word_count": 1482
  },
  "last_updated": "2023-07-14T19:51:24.172785+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "John H. Herrick v. Jude P. Gary."
    ],
    "opinions": [
      {
        "text": "Mr. Chief Justice Lawrence\ndelivered the opinion of the Court:\nAn act of the legislature, passed February 16,1865, provides that any person who suffers sheep owned by him, and known to be infected by contagious disease, to run at large, or who keeps them in any place where other sheep can have access to, or .be infected by them, shall be liable to pay all resulting damages. This suit was brought under this statute by Herrick against Gary. The jury found for the defendant, and Herrick appealed.\nThere is no doubt, upon the evidence, that Gary\u2019s sheep were suffering from a contagious disease known as the scab; that they were in a pasture on Gary\u2019s farm ; that Gary\u2019s portion of the fence between his pasture and the adjoining one of Herrick,\u2019 where the latter\u2019s sheep were kept, was not in good condition; that Herrick\u2019s sheep became diseased and many of them died, and that several of Gary\u2019s sheep were in the flock of appellant before the disease appeared in the latter\u2019s flock.\nUnder this statute it is clear that the owner of sheep having a contagious disease has no right to let them run, even upon his own land, where they can communicate disease to sheep lawfully pastured in an adjoining field. The design of the statute evidently was, not only to forbid the owner from allowing such sheep to r\u00fan at large, but to require him to keep them on his own farm in such manner as not to come in contact with the sheep of a neighbor. The testimony in this record is,' that the disease above named can be communicated from one flock to another, even though constantly separated by an ordinary fence. However this may be, in this case the, sheep occasionally escaped from one pasture to the other, and the preponderance of the evidence is that it was in consequence of t\u00a7at portion of the division fence which belonged to defendant being out of repair. The defense seems to have been made on the ground that the plaintiif\u2019s sheep may have caught the disease from other sheep than those of the defendant, and that the evidence as strongly sustained one hypothesis as the other. Another defense was, that the plaintiff failed to take proper care of his sheep after they became diseased.\nIn reference to the first ground of defense, the court \u2022 instructed the jury in substance that if it was as likely the plaintiff\u2019s sheep caught the disease elsewhere as from the defendant\u2019s sheep, they should find for the defendant. In view of the evidence in this case, this instruction, however correct it might sometimes be, was highly calculated to mislead. The record shows that a portion of the flock in plaintiff\u2019s pasture belonged to plaintiff\u2019s father. It also shows that plaintiff\u2019s sheep, or a part of them, were sometimes on the public highway, but it does not appear that they there came in contact with other sheep. The plaintiff, when on the stand, was asked how he knew that his own sheep did not take the disease from his father\u2019s sheep. He replied that as they were together, of course he could not tell which took it first. We presume it was urged upon the jury, as it is now argued here by defendant\u2019s counsel, that if, as a matter of fact, the first sheep attacked in plaintiff\u2019s pasture belonged to his father, and the disease spread from such sheep, the plaintiff could not recover, and unless the jury could determine affirmatively, from the evidence, that the sheep of plaintiff were the first to become infected, he had failed to make out his case. The jury would, doubtless, understand the first instruction in that way, and as having reference to the sheep of plaintiff\u2019s father.\nFrom this theory we totally dissent. It might as well be said that if only one of plaintiff\u2019s sheep caught the disease from defendant\u2019s flock directly, and the contagion spread from such sheep to the rest of the flock, the plaintiff could recover only for the one sheep thus directly infected. The sheep of the plaintiff and of his father were running together in plaintiff\u2019s pasture as a single flock. If the disease was communicated by defendant\u2019s flock at all, it is wholly immaterial whether the first sheep infected in plaintiff\u2019s pasture belonged to him or to his father. The statute is not to be defeated by any such hair-splitting refinements. In either case the disease should be regarded as communicated directly by the defendant\u2019s flock. The unreasonableness of the rule contended for is apparent when we remember that the plaintiff can certainly not recover from, his father, nor his father from him, and in case the entire flock had been destroyed by the defendant\u2019s \u2022violation of the statute, there could, on this theory, be no recovery against him, because the jury could not determine which individual sheep in plaintiff\u2019s pasture first caught the contagion. The first instruction should have been qualified so as not to mislead the jury in' this regard.\nThe instructions in regard to the treatment of his diseased sheep by the plaintiff should also be modified. The plaintiff can not be held responsible for more than ordinary care and skill. See Mount v. Hunter, 58 Ill, 246.\nThe 4th instruction is also objectionable. It tells the jury that if the plaintiff\u2019s negligence caused the damage, or contributed to it equally with that of the defendant, they must find for the defendant. This does not, of course, relate to defective care or medical treatment after the sheep became diseased, since, even if the slieep could have been cured by proper care, the defendant would still have been liable for the expense arid trouble incurred, if liable at all. It can only properly refer to some supposed want of care on plaintiff\u2019s part prior to the communication of the disease, and yet we see nothing of that character in the record to which it could properly apply. The plaintiff had a right to have his sheep where they were, and the fact that more or less of them may have been in poor flesh would not excuse the defendant, if otherwise liable. This'instruction, in its present general form, should not have been given. The judgment is reversed and the cause remanded.\nJudgment reversed.",
        "type": "majority",
        "author": "Mr. Chief Justice Lawrence"
      }
    ],
    "attorneys": [
      "Messrs. Wheaton, Smith & McDole, for the appellant.",
      "Mr. Elbert H. Gary, for the appellee."
    ],
    "corrections": "",
    "head_matter": "John H. Herrick v. Jude P. Gary.\n1. Sheep Turning contagious disease\u2014right of action. Under the act of Feb. 16, 1865, relating to diseased sheep, it is clear that the owner of sheep having a contagious disease, has no right to let them run even upon 'his own land where they can communicate disease to sheep lawfully pastured in an adjoining field. $\n2. Same\u2014cormmmication of the disease indirectly. Where the defendant kept his sheep which were infected with the scab, in his own pasture, adjoining that of the plaintiff, the two pastures being separated by a division fence, and defendant\u2019s sheep, through want of repair in his portion of the fence, escaped into the plaintiff\u2019s pasture, where the plaintiff had a lot of sheep, part belonging to himself and part to his father, so that it was doubtful whether plaintiff\u2019s or his father\u2019s sheep were first infected: Held, that an instruction, if it was as likely the plaintiff\u2019s sheep caught the disease elsewhere as from defendant\u2019s sheep, the jury should find for defendant, was erroneoug, being highly calculated to mislead; and that if any of the flock were infected, and the disease thereby communicated to plaintiff\u2019s sheep, the defendant was liable.\n3. Same\u2014core required of plaintiff. Where a plaintiff\u2019s sheep are infected from the sheep of the defendant, the former will not be held responsible for more than ordinary care and skill in their treatment; but even if they could have been cured by proper care and treatment, this will not exonerate the defendant from liability for the trouble and expense incurred by the plaintiff.\n4. Same\u2014instruction as to negligence of plaintiff. Where the plaintiff had his sheep in his own pasture, and they were infected with disease from defendant\u2019s sheep, kept by him in an adjoining pasture, from which they escaped through defects in defendant\u2019s part of the division fence, and communicated with plaintiff\u2019s sheep, the court instructed the j ury, for the defendant, that if the plaintiff\u2019s negligence caused the damage, or contributed to it equally with that of the defendant, they must find for the defendant: Held, that this could not refer to defective care after infection, as that could not wholly exonerate defendant; and in reference to want of care before infection, it was erroneous for the reason there was no proof upon which to base it.\nAppeal from the Circuit Court of De Kalb county; the Hon. Theodore D. Murphy, Judge, presiding.\nMessrs. Wheaton, Smith & McDole, for the appellant.\nMr. Elbert H. Gary, for the appellee."
  },
  "file_name": "0101-01",
  "first_page_order": 101,
  "last_page_order": 105
}