Bolton v. Barkhurst

• Citation: 40 Ohio App.2d 353,319 N.E.2d 376
• Parties: , 69 O.O.2d 316 BOLTON et al., Appellants, v. BARKHURST et al., Appellees.
• Decision Date: 12 January 1973
• Court: United States Court of Appeals (Ohio)

Page 353

40 Ohio App.2d 353

319 N.E.2d 376, 69 O.O.2d 316

BOLTON et al., Appellants, v. BARKHURST et al., Appellees.

Court of Appeals of Ohio, Sixth District, Wood County.

Jan. 12, 1973.

Syllabus by the Court

Where injuries are sustained as the result of a collision upon a public highway at night between plaintiff's automobile and a horse, the liability of the owners and keeper of the horse for such injuries is determined by the law of negligence as opposed to the concepts of strict liability. (Bolton v. Barkhurst (1971), 27 Ohio Misc. 105, 273 N.E.2d 349 approved and affirmed; Burrowes v. Dean (1969), 24 Ohio Misc. 77, 263 N.E.2d 416 disapproved.)

Marsh & Crowley, Bowling Green, for appellants.

Hanna & Hanna, Bowling Green, for appellees Robert Barkhurst and Sue Barkhurst.

Daniel M. Phillips, Toledo, for appellee Fernleigh S. Mertz.

CLIFFORD F. BROWN, Judge.

Plaintiffs JoAnne Bolton and William Bolton, two of the appellants herein, appealed from a judgment on a jury verdict for defendants-appellees Robert Barkhurst and Sue Barkhurst, lessees of a stable area for a horse and colt, and for defendant-appellee Fernleigh Mertz, owner of the farm from which he leased the one-fourth acre stable area to lessees.

Whenever the designation 'plaintiff' is used herein, it will refer to plaintiff JoAnne Bolton. Plaintiff William Bolton has a claim for loss of consortium resulting from his wife's injuries; plaintiff Hartford Insurance Company alleges a surbogation claim for automobile collision benefits paid to its insureds, the Boltons; plaintiff Blue Cross of Northwest Ohio asserts a subrogation claim for medical and hospital expenses paid for plaintiff. The derivative rights of these latter three plaintiffs will stand or fall with the claim for relief of plaintiff JoAnne Bolton.

Plaintiff, on April 9, 1970, at about 11:30 p.m., while driving easterly on Kellogg Road, a two-lane improved highway, in Wood County, was seriously injured by colliding with a horse and colt owned by lessees, the Barkhursts, which had escaped from the stable and the barnyard area leased from Mertz. The horse and colt were struck and killed by plaintiff in her eastbound lane of travel. The leased area was a few hundred feet south of Kellogg Road on the large farm of defendant Mertz, on the south side of Kellogg Road. The stable area for the horse and colt was enclosed by a wooden fence and by a wooden post in good condition upon which a 14 foot wide gate was fastened, when closed by a metal chain furnished by the Barkhursts. After the collision, the gate was found partially opened and the well worn chain in two pieces was unfastened from the post and hanging down on the gate. There was evidence of a heavy wind the day preceding the collision. The horse and colt were gentle and had no vicious propensities.

The investigating officer found debris, blood and tufts of hair close to the center line in the eastbound lane of Kellogg Road, from which evidence the point of impact can be inferred. The horse was found dead at the north edge of the pavement at a point 48 feet east of the point of impact, and the colt was found dead at the south edge of the pavement, 190 feet east of the point of impact. Plaintiff's car traveled 460 feet east from the point of impact until it was stopped by a large tree on the north side of Kellogg Road. A compilation of undisputed evidence from several witnesses is that after the collision the dead horse had a gaping, deep wound in the buttocks area, about 12 inches long and about 6 inches wide, an open split extending from just under the tail downward through the vulva and part of the tail was torn off. No other wound marks appeared on the horse. The dead colt had several breaks along one side but no other visible marks of injury.

Plaintiff was alone in her car when the collision occurred and suffered amnesia, causing an inability to remember the collision or any events during a four hour interval following the accident. There were no eye witnesses to the collision. The pertinent evidence summarized supports an inference that plaintiff, while traveling at high speed in her eastbound lane of travel on Kellogg Road, struck the horse in its buttocks area, splitting it open, and also struck the colt, sending each animal flying diagonally in somewhat opposite directions from each other for a substantial distance.

Four assignments of error and part of another assignment of error deal with the trial court's refusal to grant plaintiff a summary judgment on the issue of liability and also its submission of the case to the jury with instructions to reach a verdict on the basis of the rules of negligence, contributory negligence and proximate cause. The plaintiffs claim this was error for the reason that plaintiffs are entitled to have their rights to recover against defendants on the theory of strict or absolute liability of defendants, and not on the theory of negligence.

Plaintiffs' contention that the rule of strict liability applies to an owner or keeper of an animal who permits it to go upon a highway proximately causing a collision is based largely upon the case of Burrowes v. Dean (1970), 24 Ohio Misc. 77, 263 N.E.2d 416, a Court of Common Pleas decision. For reasons hereinafter explained, we reject this contention, do not follow it, and are not required to follow the holding in Burrowes v. Dean, supra, and conclude that the trial court in all trial procedures on the question of liability properly applied the law of negligence to the facts and in the instructions to the jury, and that all other assigned errors pertaining to the admissibility of evidence and otherwise, not related to the proper theory of the liability of defendants, are without merit. We affirm. See the opinion of the Court of Common Pleas of Wood County, in Bolton v. Barkhurst (1971), 27 Ohio Misc. 105, 273 N.E.2d 349.

Burrowes v. Dean, supra, stands alone in Ohio for the proposition that the rule of strict liability applies to make an owner or keeper of an animal liable for injuries proximately caused to a traveler on the highway.

Plaintiff also contends that the case of Nixon v. Harris (1968), 15 Ohio St.2d 105, 238 N.E.2d 785, establishes the rule of strict liability. However, Nixon, supra, is not applicable to the present case because it did not involve an injury caused on a highway by an animal breaking from its enclosure, but was an injury caused to a boy on his father's farm when the boy was gored by an animal which escaped from the neighboring farmer's enclosure, as is apparent from the syllabus, the law of the case, as follows:

'If an animal breaks into the enclosed land of another, or gains entrance into such enclosure by jumping over the fence, and there damages real or personal property of the one in possession, or injuries a member of his family, the owner of the trespassing animal is liable without reference to whether or not such animal was vicious and without reference to whether such propensity was known to its owner. (Morgan v. Hudnell, 52 Ohio St. 552, 40 N.E. 716, approved and followed.)'

Nixon, supra, cites Morgan v. Hudnell, with approval. However, in the Morgan case, again, we have no highway accident, but an injury to plaintiff's horse on plaintiff's premises by the escape of defendant's horse from defendant's enclosure and strict liability based upon the law on trespass, as it was in the Nixon case.

The Nixon case, supra at page 109, 238 N.E.2d 785, cites with explicit approval Drew v. Gross, 112 Ohio St. 485, 147 N.E. 757 and Barber v. Krieg, 172 Ohio St. 433, 178 N.E.2d 170, stating that the latter two cases were tried upon the theory of negligence and that trespass was not an issue.

Both Drew v. Gross, and Barber v. Krieg, involved claims that the negligence of the owner of an animal, in not keeping it off the highway, caused property damage or personal injury to a traveler on the highway. Drew relates to property damage to plaintiff's automobile and Barber relates to personal injury to a plaintiff who was a passenger in an automobile.

In Barber v. Krieg, supra at page 435, 178 N.E.2d 170, the Ohio Supreme Court stated that R.C. 951.02 and R.C. 951.10, which prohibit owners or keepers of animals from allowing them to run at large, are statutes designed for the purpose of preventing trespass and not for the benefit of highway travelers, and cites, as support, the case of Marsh v. Koons (1908), 78 Ohio St. 68, 84 N.E. 599.

Thus, a careful analysis of the development of Ohio judicial precedent in this area of tort law reveals that the Nixon case, supra, approves Barber v. Krieg, supra, and the latter case approves March v. Koons, supra. Thus, Marsh v. Koons is still the law in Ohio and, based upon paragraph one of the syllabus thereof, stands for the following proposition of law. The purpose and object of R.C. 951.02 and R.C. 951.10, which make it unlawful for the owner or keeper of animals to permit them to run at large on a public highway, and imposes responsibility on him for all damages done by such animals to the premises of...