Bostock-Ferari Amusement Co. v. Brocksmith

• Citation: 73 N.E. 281,34 Ind.App. 566
• Decision Date: 14 February 1905
• Docket Number: No. 5,167.,5,167.
• Parties: BOSTOCK-FERARI AMUSEMENT CO. v. BROCKSMITH.
• Court: Court of Appeals of Indiana

34 Ind.App. 566

73 N.E. 281

BOSTOCK-FERARI AMUSEMENT CO.

v.BROCKSMITH.

No. 5,167.

Appellate Court of Indiana, Division No. 2.

Feb. 14, 1905.

Appeal from Circuit Court, Sullivan County; O. B. Harris, Judge.

Action by Otto Brocksmith against the Bostock-Ferari Amusement Company. From a judgment for plaintiff, defendant appeals. Reversed.

W. J. O'Brien, Jr., J. S. Pritchett, L. C. Embree, and Luther Benson, for appellant. J. P. Haughton, S. M. Emison, W. A. Cullop, G. W. Shaw, and John T. Hays, for appellee.

COMSTOCK, C. J.

The complaint alleges that the plaintiff, while driving in his buggy, was injured in consequence of his horse taking fright from the sight of a bear walking along a public street of the city of Vincennes. The action was begun in the circuit court of Knox county, and, upon change of venue, tried in the circuit court of Sullivan county. The court rendered judgment upon the verdict of the jury in favor of appellee for $750.

The complaint was in three paragraphs. The first was dismissed, and the cause was tried upon the amended second and third paragraphs, to which a general denial was filed. The errors relied upon are the action of the court in overruling demurrers to the said second and third paragraphs, respectively, of the complaint, and overruling appellant's motion for a new trial. Among the reasons set out in the motion for a new trial are that the verdict was contrary to the law, and was not sustained by sufficient evidence.

The question of the sufficiency of the second paragraph of complaint is not entirely free from doubt, but we conclude that each of said paragraphs is sufficient to withstand a demurrer.

It is sought to maintain an action for damages resulting from the fright of a horse at the sight of a bear, which its keeper and owner was leading along a public street for the purpose of transporting it from a railroad train by which it had been carried to Vincennes to the point in Vincennes at which the bear was to be an exhibit, as a part of appellant's show. It is not claimed, either by allegation or proof, that the show was in itself unlawful; and there is no pretense that the transporting of the bear from one place to another for the purpose of exhibition was unlawful, or in itself negligence. The case is therefore one of the fright of a horse merely at the appearance of the bear while it was being led along the street, was making no noise or other demonstration, and was in the control of its keeper. It appears without contradiction from the evidence that when the horse took fright the bear was doing nothing except going with his keeper. He was muzzled. He had a ring in his nose, to which a chain was attached. It was strong enough to hold and control him. He had around his neck a collar about two inches wide and one-half inch thick, to which also was attached a chain. The keeper had both chains in his hand when the accident occurred. The chain connected with the ring in his nose was small. The one connected with his collar was large. It was for the purpose of chaining him at night when he was alone. The chains were strong enough to control the bear. The animal was characterized by the witnesses who knew him as “gentle,” “kind,” and “docile.” His keeper testified that he had never known him to be mean or growl. He testified, also, that he never knew of a bear scaring a horse; that shortly before the accident the keeper met two ladies in a buggy, and their horses did not scare. He was described as of pretty good size and brown. One witness said he was a “large, ugly looking brown bear.” When a person is injured by an attack by an animal feræ naturæ, the negligence of the owner is presumed, because the dangerous propensity of such an animal is known, and the law recognizes that safety lies only in keeping it secure. Am. & Eng. Ency. Law, vol. 2 (2d Ed.) p. 351. In the case before us the injury did not result from any vicious propensity of the bear. He did nothing but walk in the charge of his owner and keeper, Peter Degeleih. He was being moved quietly upon a public thoroughfare for a lawful purpose.

We have given the facts that are not controverted. There is also evidence tending strongly to support the claim made by appellant that appellee was guilty of negligence proximately contributing to his injury. Appellant also earnestly argues-supporting its argument with references to recognized authorities-that the owner and keeper of the bear was an independent contractor. But the disposition which we think should be made of the appeal makes it unnecessary to consider these questions. The liability of the appellant must rest on the doctrine of negligence. The gist of the action as claimed by appellee is the transportation of the bear, with knowledge that it was likely to frighten horses, without taking precaution to guard against fright. An animal feræ naturæ, reduced to captivity, is the property of its captor. 2 Black. Comm. 391, 403; 4 Black. Comm. 235, 236. The owner of the bear had the right to transport it from one place to another for a lawful purpose, and it was not negligence per se for the owner or keeper to lead it along a public street for such purpose. Scribner v. Kelley, 38 Barb. 14;Macomber v. Nichols, 34 Mich. 212, 22 Am. Rep. 522...