12 Wash. 46 | Wash. | 1895
The opinion of the court was delivered by
This is an action brought to foreclose an alleged lien upon a band of sheep belonging to the defendant. A demurrer was interposed to the complaint, to the effect that it did not state facts sufficient to constitute a cause of action; which demurrer was overruled by the court. The defendant answered and plaintiff replied. Whereupon the defendant demanded a trial by jury, which request was denied by the court. Judgment was rendered in favor of plaintiff, decreeing the amount that was due him for services rendered, and establishing and decreeing a lien upon the sheep to satisfy the judgment. From such judgment and decree defendant appeals to this court.
This action was brought under § 1705 of the Gen-' eral Statutes of Washington, which provides that —
“ Any farmer, ranchman, herder of cattle, tavern-*47 keeper, livery and boarding stable keeper, to whom any horses, mules, cattle or sheep shall be entrusted for the purpose of feeding, herding, pasturing, training, caring for or ranching, shall have a lien upon said horses, mules, etc., for such feeding, herding, pasturing, etc., and shall be authorized to retain possession of such property until the amount is paid.”
It is contended by the appellant, first, that the complaint is insufficient in that the sheep attempted to be described are not sufficiently described; second, that the section of the statute referred to does not apply to a servant who is employed by the master in the general work of taking care of a band of sheep, and who does not have any other possession of the sheep than the mere possession of a servant possessing and controlling them for the master and constantly under the master’s control. The material portion of the allegations of this complaint, so far’ as they bear upon the questions raised here, is as follows :
“ 1st. That the said defendant is and at all times hereinafter was the owner of a certain band or herd of sheep; that said band or herd of sheep on the 27th day of March, 1892, numbered about 3,500 sheep; that said defendant during the year 1893 sold about 2,400 of said sheep and their increase, and said band now numbers about 2,400 sheep; which said sheep are now in the county of Klickitat, and at all the times herein mentioned have been within the state of Washington.
“2d. That on or about the 27th day of March, 1892, the said defendant employed said plaintiff to act as herder of said band of sheep at the agreed wages of $40 per month for each month, except in lambing time when plaintiff was to receive $50 per month for the month in which the lambs were being dropped, after the first year; and on or about the 27th day of March, 1892, the plaintiff commenced work for the defendant as such herder, and has since said date continued to herd said sheep at all times, except from*48 Dec. 12, 1892, to Jan. 17, 1893, during which time only the plaintiff was absent from said band of sheep.”
It seems to us that there is no sufficient description of these sheep. ' It will be seen that all the description there, is is that the defendant was the owner of a certain band of sheep now numbering about 2,400, and that they are now in the county of Klickitat, and at all times prior to the filing of the complaint have been within the state of Washington. The statement that the band on the 27th day of March, 1892, numbered about 3,500 sheep, and that the defendant during the year 1893 sold about 2,400 of said sheep and their increase, in no way helps to describe the band as they now exist. It would be impossible for an officer whose duty it was to foreclose this lien to determine the particular sheep, or band of sheep which he was author.ized to levy upon, from this description.
It is urged by the respondent that no more definite description could be given of sheep which had neither ear-marks nor brands. It does not appear from this complaint that these sheep were devoid of ear-marks or brands, and if it did so appear, that statement would in itself be a description of a definite character, and one which would help to distinguish them from other bands of sheep with brands or ear-marks. It does not even state what kind of sheep these are, whether ewes or wethers, whether old or young. It does not locate them on any particular ranch or in any particular portion of the county; and while it is true that it would be impossible to describe a band of sheep with that definiteness which might characterize a description of real estate, yet it seems to us that the mere statement that it is a band of sheep owned by defendant, and that the band is within the boundary lines of Klickitat county, is exceedingly indefinite.
It might be urged by the respondent that even with this construction of the statute his complaint was sufficient. But it is nowhere alleged in the complaint that these sheep were intrusted to him for the purpose of herding them, and, construed as we would construe any other pleading, it seems to us that it is an allegation of hire simply. The respondent insists that the phrase “shall be intrusted” has no particular significance; but it occurs to us that it has a gr.eat significance; that, in-fact, it really determines the nature of the employment for which this lien is given. The cases of McDearmid v. Foster, 14 Or. 417 (12 Pac. 813), Wenz v. McBride, 20 Colo. 195 (36 Pac. 1105, King v. Indian Orchard Canal Co., 11 Cush. 231, and Bailey v. Davis, 19 Or. 217 (23 Pac. 881), it seems to us are conclusive upon this question. It is admitted by the respondent that these cases are in point, but he insists that they were decided under the rules applicable to common
Even were it conceded that the complaint was sufficient to bring the case within the construction which we have here indicated ought to be placed upon .the law, the testimony plainly shows that the respondent in this case was simply hired to do this work as a common servant; that he had no care, custody or control whatever over the sheep; that had they committed any depredations or damaged any one, the appellant and not the respondent would have been responsible for such damages; and this, we think, is one of the true tests of distinction in this kind of a case. The herder who takes a band of sheep or cattle or horses into his possession and is entrusted with their care, custody and control, and takes them out of the care and control of the owner, whether his compensation be for so many dollars a month, or so many dollars a month per head, for the stock, is liable for all damages which may occur by reason of the depredations of said stock or any damage which may occur to the stock, and is responsible to the owner for their safe return. But in this case there was no liability whatever. The respond
“ Question: Did not the defendant have them at his own ranch or camp the whole time you were working for him? Answer: He was moving them from one place to another, the same as the rest of them does. Never had any particular place except in the winter.
“ Q! But he always had a camp where they were brought at night, did he not? A. He did.
“ Q. And in the winter time would take them to a suitable place for the winter? A. Yes, sir.
“ Q,. While you were herding did he have any one else helping with the sheep? A. Yes.
“ Q. Who? A. I could not name them. He never kept a man over a week except myself.
“Q,. What were those other men doing? A. They were herding and packing and whatever came to hand around the camp.
“Q. The same as you? A. They was.”
Thus it will be seen that this particular herder had no more control or custody or possession of these sheep ■ than the other herders who, he says, were employed by the owner of the sheep at the same time that he was herding them; that they were doing just about what he -was doing; but that the owner was looking after their interests, providing the herding territory and taking them to suitable places for the winter. The testimony all the way through shows so conclusively to our minds that this respondent never had these sheep entrusted to him, and that he never had the possession of them that is contemplated by the statute, that it would be useless to discuss it further.
We are satisfied, then, (1) that the statute does not confer a lien upon a man who herds sheep for wages or by the day or month; and (2) that the complaint
The judgment will therefore be reversed, and the cause remanded with instructions to sustain the demurrer to the complaint.
Hoyt, C. J., and Scott, Anders and Gordon, JJ., concur.