Oppenheimer Industries, Inc. v. Johnson Cattle Co.

BAKES, Justice,

dissenting:

I

The majority inaccurately states the facts when it asserts that the deputy brand inspector “knew prior to the sale” that the cattle involved bore Oppenheimer’s brand. In the first instance, more than one sale of cattle occurred. The alleged transactions involved at least ten different buyers on eleven different dates over seven months’ time. Second, there is nothing in the record to indicate when the actual sale contracts were executed between Bolen and the various buyers. In short, there is nothing in the record to even indicate that the sales were conditioned on the issuance of a brand inspection certificate. The evidence that is in the record does not show that the buyers were the ones to request the brand inspection at issue. Rather, the record clearly shows that all of the inspections were requested by Bolen’s agents, not by the purchasers. Indeed, in at least two of the sales transactions, the buyers were so disinterested in the brand inspection that they did not even sign the inspection certificates. Furthermore, the uncontradicted testimony of the deputy brand inspector was to the effect that it was a custom in the industry that if a purchaser of cattle had any questions regarding the presence of a fresh brand his request to the brand inspector for additional proof of ownership would be honored. The brand inspector in the-present case further testified that none of the buyers present at any of the brand inspections ever questioned the propriety of issuing a certificate without additional proof of ownership.

Third, the deputy inspector testified that he did not even become aware of Oppenheimer’s brand until some time in July. At *428least six transactions (inspections) had occurred before the presence of the Oppenheimer brand was discovered.1 Even once discovered, there was no requirement (in either statute or regulation) that the inspector notify Oppenheimer of the sale of cattle bearing its brand. The majority’s assertion to the contrary is clearly erroneous.2

Given the lack of information in the record regarding when the sales of the cattle occurred, i.e., when the sales contracts were executed, the basic premise underlying Oppenheimer’s claim and the majority’s position, i.e., but for the “negligent inspection” the sales would not have occurred, is without support. On this basis alone, Oppenheimer has failed to produce evidence sufficient to support a cause of action against the state upon which relief may be granted and, therefore, the district court’s award of summary judgment in favor of the state should be affirmed.

II

The majority has also failed to focus on pertinent language contained in the Idaho Tort Claims Act (ITCA). I.C. § 6-901 et seq. The ITCA renders the state liable in money damages for the negligent acts of its agents which result in “bodily injury” or “property damage.” I.C. § 6-926. “Bodily injury” and “property damage” are specifically defined terms. I.C. § 6-902(5), (6). Oppenheimer’s claim appears to be based on some alleged “property damage,” since it is clear that there was no “bodily injury” to Oppenheimer Industries, a corporation. Yet, it is also clear that the acts of the deputy brand inspector in no way caused any property damage to Oppenheimer. The inspector’s alleged negligent inspection did not result in “injury or destruction” of Oppenheimer’s cattle. Any injury to Oppenheimer’s cattle had occurred long before the brand inspection was conducted.

The essence of Oppenheimer’s claim for damages is premised upon the tort of conversion. Bolen’s tortious acts constituted the conversion. If Bolen hadn’t converted the cattle, then Oppenheimer would have no claim for damages. Yet, the conversion had occurred when Bolen placed his brand on the cattle, at least two weeks prior to the brand inspection. Bolen’s act of rebranding was the act of conversion. Conversion is any “distinct act of dominion wrongfully exerted over another’s personal property in denial or inconsistent with his rights therein____” Torix v. Allred, 100 Idaho 905, 910, 606 P.2d 1334, 1339 (1980). Accord Gissel v. State, 111 Idaho 725, 727 P.2d 1153 (1986); Klam v. Koppel, 63 Idaho 171, 118 P.2d 729 (1941). Thus, Bolen’s act of rebranding the cattle constituted “[a] claim of title by one who is in possession, which reasonably implies that the owner will not be permitted to obtain the goods ----” Prosser & Keeton, Torts § 15 (1984).

By the majority’s own admission, such acts had occurred as early as two weeks prior to the brand inspections at issue. The acts of conversion were not committed by the brand inspector, at his insistence, or even with his knowledge. Neither the State of Idaho nor the brand inspector had possession of the cattle at any time, nor did they assert any dominion over the cattle or make any claim to title or right to possession of the cattle. Thus, neither the State of Idaho nor the brand inspector committed any of the traditional acts of conversion which our prior cases have recognized. Torix v. Allred, supra. The Court, by its decision today, has not just removed the state’s defense of sovereign immunity, it *429has created a new tort which did not exist before today.

The acts of the brand inspector in no way resulted in the injury (conversion) of Oppenheimer’s cattle. Even when viewing Oppenheimer’s allegations in a light most favorable to it, it is clear that any role played by the deputy brand inspector in the chain of causation leading to the alleged conversion was, at best, after the fact and thus too remote to be the proximate cause of such injury. Therefore, no liability will lie against the State Brand Board since the alleged acts of its agent did not cause any “property damage” as that term is defined by I.C. § 6-902(6) and applied in I.C. § 6-926. The district court properly dismissed Oppenheimer’s claim against the State Brand Board.3

Ill

Finally, apart from the issue of causation, I fail to find within the facts of this case anything which would support a finding, as a matter of law, that an action in negligence lies in favor of Oppenheimer, a third party to the brand inspection, against the State Brand Board. I know of no law in this state which would establish such a cause of action. The State Brand Board owes no duty to protect Oppenheimer against loss, damage or theft of its cattle by third parties. The mere fact that the brand regulations in question result in an indirect benefit to all members of the public dealing with the cattle or livestock trade does not in and of itself create a cause of action in Oppenheimer for any alleged failure to protect him against loss or theft of his cattle. In Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986), this Court held that an action would lie in tort in favor of a third party (Sterling) who was injured as a result of the negligent conduct of the state with regard to an individual entrusted to the state’s charge. In Sterling, the Court based the existence of a cause of action upon the Restatement (Second), Torts §§ 315, 319. However, in the present case, it is clear that Restatement (Second), Torts, § 319, does not apply. Neither statute nor regulation imposes upon the State Brand Board or the brand inspector any responsibility or duty to supervise feedlot operations such as the one involved in the present case. In short, I fail to see any basis in the law or facts of this case for asserting that the state was under a duty to protect Oppenheimer against the loss or theft of its cattle.

SHEPARD, J., concurs.

. The majority states that the cattle involved had only two brands. The uncontradicted testimony of the deputy brand inspector was that the cattle in all the inspections had at least three brands, only one of which was fresh.

. The only notification requirement imposed by statute involves secured transactions where a security interest is created in the cattle. In such circumstances, the secured party may request notification from the brand board whenever sales of its cattle occur for which a brand inspector issues an inspection certificate. However, in the present case, the uncontraverted evidence in the record indicates that no such request had been filed by Oppenheimer with the brand board regarding these cattle.

. It appears that the majority asserts that Oppenheimer’s damage results from loss of possession of his property. If the majority’s characterization of Oppenheimer’s claim is correct, then it is clear beyond cavil that the alleged conduct of the deputy brand inspector had nothing at all to do with Oppenheimer's claim for damages. Technically speaking, Oppenheimer is himself to blame for loss of possession of his cattle. Possession was relinquished voluntarily to Bolen. It is not the responsibility of the State Brand Board to act as guarantor to feedlot operations. Oppenheimer himself remains primarily responsible for monitoring the acts of those to whom he has entrusted possession of his cattle.