(dissenting).
In my view, the Commissioner of Agriculture is not entitled to an order directing defendant to restrain all of his cattle for brucellosis testing, since the Commissioner has not proved the “herd” from which the infected cow came or with which it intermingled.
LSA-R.S. 3 :2221, subd. A, clearly limits the cattle which must be restrained for testing to those “in a herd which has shown evidence of brucellosis infection, or has intermingled with or otherwise been exposed to brucellosis infected animals”. The rationale of these provisions is that one person may own several different herds of cattle, as for instance a dairy herd, a beef herd, a herd of common cattle, a herd of registered cattle, or herds on different farms or in different parishes or states. It would be a substantial and useless burden on the owner to require him to restrain herds other than those showing evidence of infection, or having intermingled with infected animals.
It is fundamental that plaintiff has the burden of proving every element of his cause of action. In the present case, an element of plaintiff’s cause of action under the statute is proof of the herd. If the evidence is silent as to the herd, plaintiff has not proved his case. Clearly, the burden is not on the defendant to prove the herd.
In the present case, there is absolutely no evidence to show the herd from which the infected animal came or with which it intermingled. The order issued by the district court required defendant to restrain all of his cattle, regardless of the herd from which it came or how many herds the defendant may own. It is my view that the evidence does not support such an order.
For the reasons assigned, I respectfully dissent.