Bates v. Stearns

• Decision Date: 04 May 1935
• Docket Number: 32209.
• Citation: 141 Kan. 814,44 P.2d 278
• Parties: BATES v. STEARNS.
• Court: Kansas Supreme Court

44 P.2d 278

141 Kan. 814

BATES v. STEARNS.

No. 32209.

Supreme Court of Kansas

May 4, 1935

Syllabus by the Court.

Landlord who had leased premises on which rodeo exhibition was held and who had no control over exhibition and had no interest in receipts, held not liable for accidents occurring at exhibition.

Where evidence was introduced, in action for accidental injuries sustained at rodeo exhibition, that landlord of premises on which rodeo was held was announced as owner and promoter and that he tipped his hat or made a bow to the audience instruction that, if jury found evidence to be true and that landlord did not deny or contradict announcement in any manner, he would be bound thereby and would be liable for accident, held error.

1. In a case where damages were sought for an accident that happened at a rodeo exhibition, it is held, that the owner of the land, who had leased it to others and had no control over the rodeo and no interest in the receipts of it, is not liable for the accidents that occur at the exhibition.

2. In a statement that appellant was announced by some one as the owner and promoter of the rodeo, and that he tipped his hat or made a bow to the audience, the court gave an instruction that if they found that to be true, and the owner did not deny or contradict in any other manner, he would be bound by such announcement that he was the promoter and that in that instance would be held liable for the accident. Held, error.

Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, judge.

Action by Marie Bates against G. A. Stearns. Judgment for plaintiff and defendant appeals.

Judgment reversed, with directions.

Chas G. Yankey, Harvey C. Osborne, John G. Sears, Jr., and Verne M. Laing, all of Wichita, for appellant.

R. E. Angle, of Wichita, for appellee.

JOHNSTON Chief Justice.

The plaintiff, Marie Bates, brought this action against G. A. Stearns, on whose farm a rodeo exhibition was being conducted, and she alleged that she attended the exhibition given there on October 7, 1932. She alleged that wild untamed horses were exhibited there and that one of those horses, with a rider thereon, was turned loose on the premises. After getting out of the inclosure, the horse went over two fences about five feet high in front of the grandstand, over some box seats, and up one aisle of the grandstand, and in going through struck or kicked the plaintiff, injuring plaintiff's left leg between the knee and the ankle.

The plaintiff alleged that the defendant is owner and promoter of the exhibition and is liable for any injuries suffered. The situation at the place where the exhibition was given is described as a half-mile race track in a circular form; that in the traveled part of the track in front of the grandstand there was first a fence all around the track; that was about five feet high, made of steel posts of page wire, heavy and strong, and then an open space of fifteen feet, then the boxes in front of the grandstand seventeen feet wide, and then a second fence.

She alleges that after about an hour and a half, a horse was let out of the pen or chute with a rider on him; that he came out bucking and kicking, plunging, and jumped the first fence, ran over the box seats, went over the second fence, which was about five feet high of woven wire, and there dislodged the rider. The horse went up into the grandstand and struck plaintiff as he passed, bruising her leg as stated. She remained some time in the show and afterwards walked to the street car on which she went home.

Defendant answered that he was the owner of the farm, which was twelve miles north of Wichita, and he denied especially that he had any control or supervision over the horse which the plaintiff alleges caused her injury. He denied that he received the proceeds of the exhibition or that he in any way participated in the distribution of said money; defendant denied that he is in any way responsible for the plaintiff's injury, and that plaintiff failed to exercise any care incumbent upon her to avoid the injury, and that if she suffered any injury plaintiff proximately contributed to it by the carelessness and negligence of plaintiff.

It was shown that while the defendant was described as the owner and promoter, it was shown that he had leased the ground as a racing track to the Wichita Driving Club Association, and that he had no control whatever of the exhibition. The Wichita Driving Club put the improvements on the farm for the exhibition and then leased it to B. Davis of Wichita. The association was to receive a percentage of the receipts.

The testimony in the case makes it clear that Stearns was without responsibility for the accident. He had leased the property to another, and the fences and structures on the ground had been placed there by the Wichita Driving Club Association and ...