Cox v. Moore, 394 S.W.2d 65, 68 (Mo. App. Spfld.D. 1965). Although the language of the Stock Law refers only to owners of escaped livestock, Plaintiff argues that previous cases have interpreted its provisions to apply to both owners and possessors of livestock, citing, among others, King v. Furry, 317 S.W.2d 690 (Mo. App. St.L.D. 1958), Keefer v. Hartzler, 351 S.W.2d 479 (Mo. App. K.C.D. 1961), and Jones v. St. Charles Cnty., 181 S.W.3d 197 (Mo. App. E.D. 2005). An examination of the cases cited in Plaintiff's brief reveals that while several state that possessors of livestock are subject to the Stock Law, none were actually decided on the ground that the Stock Law applies to non-owner possessors of livestock.
Cox v. Moore, 394 S.W.2d 65, 68 (Mo. App. Spfld.D. 1965). Although the language of the Stock Law refers only to owners of escaped livestock, Plaintiff argues that previous cases have interpreted its provisions to apply to both owners and possessors of livestock, citing, among others, King v. Furry, 317 S.W.2d 690 (Mo. App. St.L.D. 1958), Keefer v. Hartzler, 351 S.W.2d 479 (Mo. App. K.C.D. 1961), and Jones v. St. Charles Cnty., 181 S.W.3d 197 (Mo. App. E.D. 2005). An examination of the cases cited in Plaintiff's brief reveals that while several state that possessors of livestock are subject to the Stock Law, none were actually decided on the ground that the Stock Law applies to non-owner possessors of livestock.
See n. 6 supra. See Cox v. Moore, 394 S.W.2d 65 (Mo. App. 1965); Clark v. Moore, 341 So.2d 116 (Ala. 1976); Keefer v. Hartzler, 351 S.W.2d 479 (Mo. App. 1961); Vangilder v. Faulk, 244 Ark. 688, 426 S.W.2d 821 (1968); Bryant v. McCann, 297 So.2d 262 (La. App. 1974). This rule is limited to trespassing domestic animals not covered by statute and not known to be vicious. Only negligence, not "scienter", need be proved before an owner of trespassing animal is liable.
See Anderson v. I.M. Jameson Corp., 7 Cal.2d 60, 59 P.2d 962 (1936); Kenney v. Antonetti, 211 Cal. 336, 295 P. 341 (1931); (California now has a statute which says there must be no inference of negligence on the part of the owner of livestock hit on the highway.) Porier v. Spivey, 97 Ga. App. 209, 102 S.E.2d 706 (1958); O'Connor v. Black, 80 Idaho 96, 326 P.2d 376 (1958); Shepard v. Smith, 74 Idaho 459, 263 P.2d 985 (1953); Fugett v. Murray, 311 Ill. App. 323, 35 N.E.2d 946 (1941); Guay v. Neel, 340 Ill. App. 111, 91 N.E.2d 151 (1950); Ritchie v. Schaefer, 254 Iowa 1107, 120 N.W.2d 444 (1963); Hansen v. Kemmish, 201 Iowa 1008, 208 N.W. 277, 45 A.L.R. 498 (1926); Ellington v. Strader, 285 S.W.2d 497 (Ky. 1955); Keefer v. Hartzler, 351 S.W.2d 479 (Mo.Ct.App. 1961); King v. Furry, 317 S.W.2d 691 (Mo.Ct.App. 1958); Moss v. Bonne Terre Farming Cattle Co., 222 Mo. App. 808, 10 S.W.2d 338 (1928); Doherty v. Sweetser, 82 Hun. 556, 31 N.Y.S. 649 (1894); Bender v. Welsh, 344 Pa. 392, 25 A.2d 182 (1942); Tassoni v. LeBoutillier, 130 Pa. Super. 303, 196 A. 534 (1938). There is a minority view that the motorist must prove some negligence by the owner, in addition to the presence of his livestock upon the highway, to enable the plaintiff to get to the jury.
As plaintiffs note, our courts have interpreted the Missouri Stock Law as applying to both owners and possessors of animals. Keefer v. Hartzler, 351 S.W.2d 479, 480 (Mo.App. 1961). The trial court found that it believed plaintiffs failed to plead the essential elements to invoke the Stock Law.
E.g., Clark v. Moore, 341 So.2d 116, 118 (Ala. 1976) (an owner "allows" the animal to run at large when failing to exercise reasonable care in controlling the animal); Santanello v. Cooper, 106 Ariz. 262, 475 P.2d 246, 250 (1970) ("allow" means to approve of, to sanction, to permit, or to acknowledge that an animal is at large); Prickett v. Farrell, 248 Ark. 996, 455 S.W.2d 74, 78 (1970) ("allow" means to permit by neglect to restrain or prevent); Peterson v. Pawelk, 263 N.W.2d 634, 637 (Minn. 1978) ("permit" indicates that even though an owner has no knowledge that animal is running loose, the owner has in some way negligently allowed it to do so); Keefer v. Hartzler, 351 S.W.2d 479, 481 (Mo. Ct. App. 1961) (jury may infer negligence on the part of an owner from the fact that animal was at large). See also Annot., 34 A.L.R.2d 1285, 1289-91 (1954); 4 Am.Jur.2d Animals ยง 116 at 367-68 (1962, 1983 Cum. Supp.).
While recognizing that liability cannot be imposed absent fault or negligence, the court ruled at 247 that "the statute now places the burden of proof on the issue [of negligence] upon the owner of the stock." On consideration of the decision in Anderson, this court held in Keefer v. Hartzler, 351 S.W.2d 479, 480-81 (Mo.App. 1961), that four elements are required for a prima facie case: (1) proof as to the time and place of the accident; (2) proof of ownership or possession of the animal by defendant; (3) proof that the Stock Law was in effect; and (4) proof of damages. Further, the court held:
Therefore, a verdict for the plaintiff was permissible if plaintiff tendered competent evidence that defendant was the owner of the black calf, that defendant had permitted it to run at large outside his enclosure and be on the highway at the time of the accident, and that plaintiff was thereby damaged, unless there was a proper showing the calf was outside the enclosure through no fault or negligence of the defendant. Keefer v. Hartzler, Mo.App., 351 S.W.2d 479, 480-481 (1, 2); Anderson v. Glascock, Mo.App., 271 S.W.2d 243, 251. In support of his contention that the trial court erred in not sustaining his motion for a directed verdict, and that we should reverse the case because plaintiff failed to make a submissible case, defendant urges the evidence produced was insufficient to prove "there was anyone's cow or calf on the road" at the time of the accident but, if so, there was a total failure of proof that the animal belonged to him.
Since then it has been interpreted as permitting a recovery on the theory of negligence, with the burden of showing lack of negligence on the owner. Keefer v. Hartzler, Mo.App., 351 S.W.2d 479, 480-481; King v. Furry, Mo.App., 317 S.W.2d 690; Anderson v. Glascock, Mo.App., 271 S.W.2d 243. Meshed with the proposition of animals running loose on the highway are the common law in regard to negligence and the statutory rules of the road concerning the operation of automobiles on the road. Every driver is required to use the highest degree of care (ยง 304.010 V.A.M.S.; Ficken v. Hopkins, Mo., 389 S.W.2d 193) in respect to animals as well as persons and vehicles.