Summary
In Leek et al. v. Lumpkin, 141 Ind. App. 153, 226 N.E.2d 913 (1967), the Indiana Appellate court set forth the burden which is placed upon the plaintiff to show a breach of duty on the part of a keeper of livestock.
Summary of this case from T.M. Doyle Teaming Co., Inc. v. FreelsOpinion
No. 20,412.
Filed June 9, 1967. No petition for rehearing filed.
1. STATUTES — Domestic Animals — Running at Large. — Section 16-1722, Burns' 1964 Replacement states that no owner or person responsible for any domestic animal shall permit it to run at large. p. 155.
2. NEGLIGENCE — Domestic Animals — Running at Large. — Case law apparently holds that liability for damage by a domestic animal is predicated on the proof of negligence or wilful conduct by the owner and not upon liability without proof of fault. p. 155.
3. NEGLIGENCE — Domestic Animals — Running at Large — Foreseeable Damage. — Case law holds that an owner is not necessarily responsible for all acts committed by his domestic animal while it is away from his premises but only for those reasonably foreseeable and anticipated as a natural consequence of its escape. p. 156.
4. STATUTES — Domestic Animals — Running at Large. — Section 16-1722, Burns' 1964 Replacement is grounded on permission: imperative in its wording is a standard far short of strict liability and a proper construction of "permit" in this context is actual or constructive knowledge of circumstances which would foreseeably lead to prohibited activity. p. 156.
5. NEGLIGENCE — Domestic Animals — Running at Large — Proof Required. — Plaintiff would be required to establish that defendant was negligent in his choice of the field in which he placed the animal and could reasonably foresee that the animal would escape therefrom or, he must have had knowledge that the animal was on the public highway and in violation of the statute, permitting the animal to remain at large in order to be held liable. p. 156.
From the Randolph Circuit Court, John W. Macy, Judge.
Appellants, Bryce Leek and Everett Koch, appeal from an adverse verdict in a suit for damages in which appellants' vehicle was damaged by a bull.
Affirmed. By the First Division.
Frank C. Massey, of Muncie, for appellants.
Zane Stohler and Hunter, Stohler, McCoy Sullivan, both of Winchester, and Charles V. Livengood, of Richmond, all for appellees.
Suit was commenced by Appellants, Plaintiffs below, for property damage sustained by a semi-trailer when it hit Appellee's bull.
Defendant moved the trial court for a directed verdict at the close of Plaintiff's evidence, and the jury was so instructed. Plaintiff appeals from the judgment rendered for Defendant on that verdict.
The vehicle, owned by Leek, was being driven along State Road 35 at 3:00 A.M. by Koch. Koch encountered a great red bull in the roadway too late to avoid striking it. The impact caused the vehicle to go out of control and overturn. The bull died.
Appellee Lumpkin farmed the land on either side of the portion of State Road 35 under discussion. Parcels of that land were individually owned by him, his mother, and his brother. Land owned by Appellee was no closer than a quarter-mile from the scene.
Evidence was introduced that some fencing separating other Lumpkin land from the highway was in a state of disrepair. There was no proof, however, that any of this fence was under the control of Appellee to the extent of his being responsible for its repair. Nor was any evidence introduced to show that Appellee pastured the bull in a field which he knew or should have known was enclosed by poor fencing.
There was and continues to be in effect a duty that: "No owner or person responsible for any domestic animal shall permit 1. such animal to run at large." Acts of 1951, § 502, Ch. 80, Burns' Indiana Statutes § 16-1722.
This same Act repealed a statute of similar language and import; both impose some degree of criminal liability.
A judicial interpretation of the repealed Act is found in the case of Corey v. Smith (1954), 233 Ind. 452, 120 N.E.2d 410. Under somewhat similar facts, with the important exception that the owner of that bull had been informed of its presence on the highway, the court found violation of the statute to the negligence per se.
The reasoning in that case is apparently predicated on the proof of negligence or wilful conduct in allowing an animal to escape; the key to violation was permitted running at 2. large. This language implies that a negligence standard was used in assessing liability. Conversely, if that owner in the exercise of reasonable care had not permitted the bull's continued presence on the highway, he would presumably have escaped criminal and thus civil liability. There appears nowhere in that opinion a hint of liability without proof of fault.
The above holding is not in conflict with another similar case, Dyer v. Noll (1938) 105 Ind. App. 241, 14 N.E.2d 760. That decision was that an owner is not necessarily responsible 3. for all acts committed by his domestic animal while it is away from his premises, only for those reasonably foreseeable and anticipated as a natural consequence of its escape.
The issue reduces to whether or not the owner of a bull is strictly liable for another's property damage suffered as a result of that bull's presence on a public highway.
The statute currently in effect is grounded on permission. Imperative in its wording is a standard of care far short of strict liability. A proper construction of "permit" in this 4. context is actual or constructive knowledge of circumstances which would foreseeable lead to prohibited activity.
The Plaintiff below was required to sustain the allegations of his complaint by substantial evidence of probative value 5. and establish one of two propositions in order to create a duty from the Defendant to the Plaintiff:
1. The Plaintiff would be required to establish that the Defendant was negligent in his choice of the field in which he placed the animal and could reasonably foresee that the animal would escape therefrom; or,
2. He must have had knowledge that the animal was on the public highway and in violation of the statute, permitted the animal to remain at large.
There was no conclusive proof that Appellee knew, or in the exercise of due care should have known, that his bull was or could have been on that public highway at that particular time, or that it could escape from improperly fenced land.
Finding no error in the proceedings below, the judgment of the trial court is affirmed.
Judgment affirmed.
Carson, P.J., Cooper, J., concur.
Faulconer, J., concurs in result.
NOTE. — Reported in 226 N.E.2d 913.