Buller v. American Nat. Property & Cas. Co.

• Decision Date: 05 February 2003
• Docket Number: No. 02-820.,02-820.
• Citation: 838 So.2d 67
• Court: Court of Appeal of Louisiana — District of US
• Parties: Mark BULLER v. AMERICAN NATIONAL PROPERTY & CASUALTY COMPANIES, et al.

Page 67

838 So.2d 67

Mark BULLER v. AMERICAN NATIONAL PROPERTY & CASUALTY COMPANIES, et al.

No. 02-820.

Court of Appeal of Louisiana, Third Circuit.

February 5, 2003.

Reba S. Powers, Attorney at Law, Oakdale, LA, for Plaintiff in Cross-Claim/Appellant, Derrick Marcantel.

Michael B. Holmes, Hebert, Holmes & Bertrand, Kinder, LA, for Defendant/Appellee/Appellant, John Mayes.

Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.

MICHAEL SULLIVAN, Judge.

At about noon on January 23, 2000, Derrick Marcantel and his passenger, Mark Buller, were traveling east on Parish Line Road in Allen Parish, Louisiana, when Mr. Marcantel's pickup truck struck an adult white cow that had wandered onto the road. That portion of Parish Line Road was included in a local "stock law" ordinance, enacted pursuant to La.R.S. 3:3003, that prohibited owners of livestock from "knowingly, willfully or negligently" allowing their livestock to roam at large on certain public highways.

Mr. Buller filed suit against Mr. Marcantel and his insurer, as well as John Mayes, the alleged owner of the cow. Mr. Marcantel then filed a cross-claim against Mr. Mayes. After Mr. Buller settled the main demand, the remaining parties proceeded to a bench trial of Mr. Marcantel's cross-claim. At the close of evidence, the trial court apportioned 75% fault to Mr. Marcantel and 25% fault to Mr. Mayes. The trial court awarded Mr. Marcantel $1,000.00 in general damages and $631.53 in medical expenses, subject to a reduction for his percentage of fault, but it denied his claim for property damages. Mr. Marcantel filed an appeal, to which Mr. Mayes filed an answer. For the following reasons, we affirm the judgment in favor of My. Marcantel, but we amend it to include an award of property damages.

Discussion of the Record

Mr. Marcantel testified that he was traveling at about 35 m.p.h. in clear weather conditions on Parish Line Road, which is a straight, brown gravel road, when his passenger asked him to check the fast forward button on his tape player. He looked down at the tape player, and when he looked up he saw a white cow standing in the road. He testified that he "jerked" his wheel to avoid hitting the cow, but that he still hit the rear of the animal. After the accident, he noticed that about four other cows were also on the road. (The white cow survived the accident and was able to walk away.) According to Mr. Marcantel, Mr. Mayes admitted at the scene that he owned the cows and that he would take care of any medical bills. The day after the accident, Mr. Marcantel obtained an estimate that repairs to his truck would total $2,182.19. However, he testified at trial that he could not afford to repair the truck, so he gave it to his grandfather, who was a mechanic.

Mr. Mayes testified that his family owns 550 acres to the north of the accident site where he keeps about 110 cows. The field to the south of the accident site is owned by the Manuel family, but they do not keep cattle on that land. Mr. Mayes testified that, at the scene of the accident, he presumed the cows on the road were his; therefore, with the help of a sheriffs deputy, he returned them into his field. After the accident, however, he discovered that the white cow, a Charolais breed, did not have an ear tag or a brand. In his herd, Mr. Mayes kept three to five Charolais, all of which he believed were marked. Hence, he denied that the white cow belonged to him, although he admitted that the other cows found on the road were his. He testified that he contacted Hine Unkel, who operated the only other cattle business in the area, but Mr. Unkel stated that the white cow was not his. Because no one else claimed the injured Charolais, Mr. Mayes kept it with his cattle, and it later had a calf.

Mr. Mayes testified that his cattle were enclosed by a four-strand barbed wire fence that was only one-and-half years old. He further testified that the fences were inspected either daily or every other day, particularly in the winter months when the cows had to be fed often, and that he did not observe any deficiencies in his fence after this accident. However, he also testified that he and the sheriffs deputy attempted to guide the escaped cows through a gate after the accident, but that the cattle turned before they reached the gate and "jumped into the fence and went through it." In his deposition, Mr. Mayes stated that the sheriffs department had contacted him two or three times in the previous six months about cattle escaping from his property. Mr. Mayes also recalled another accident in which Mr. Buller's mother struck one of his cows.

Ownership or Control of the Cow

In his answer to the appeal, Mr. Mayes first argues that the trial court erred in finding that he owned or controlled the white cow involved in the accident, given that the animal had no identifying brand or ear tag and that it was seen coming out of the pasture owned by the Manuels to the south of Parish Line Road.

A court of appeal may not set aside a trial court's finding of fact unless it is manifestly erroneous or clearly wrong. Stobart v. State, through the Dep't of Transp. & Dec., 617 So.2d 880 (La.1993). Thus, "[i]f the trial court or jury's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990) (citing Rosell. 549 So.2d 840 (La.1989)).

In State Farm Mutual Automobile Insurance Co. v. Thompson, 433 So.2d 376, 377 (La.App. 3 Cir.), writ denied, 441 So.2d 212 (La.1983), this court recognized that "[t]he ownership of cattle involved in an accident may be proved by circumstantial evidence." In Thompson, we found that the evidence excluded every reasonable hypothesis but that the defendant owned the cattle involved in an accident, where the two animals that were killed were in the company of five to seven other cows, one of which the defendant admitted was his, and where the defendant removed the dead cattle from the roadway.

In the present case, Mr. Mayes denied ownership of the Charolais involved in the accident because it did not have an ear tag or a brand and because it was seen coming from the south field, which was not his. However, that animal was found wandering with other cows that undisputedly belonged to Mr. Mayes, and the south field was not used for cattle operations. Mr. Mayes explained that he kept only three to five Charolais, all of which he believed had either a brand or an ear tag. However, he admitted that his cows did lose their ear tags from time to time. The only other explanation for the white cow's presence with Mr. Mayes' cows was that it belonged to Mr. Unkel, who raised cattle nearby; however, Mr. Mayes admitted that Mr. Unkel denied ownership of the cow. Additionally, Mr. Mayes testified that, on occasion, Mr. tinkers cows would mingle with his, and that one of Mr. Unkel's cows was currently in his pasture. Finally, Mr. Mayes testified that he still has possession of the white cow because no one else has claimed it. After reviewing the entirety of the record, we find no error in the trial court's finding that Mr. Mayes either owned the Charolais or exercised control over it for some time before the accident.

Apportionment of Fault.

In apportioning 75% fault to Mr. Marcantel, the trial court considered Mr. Marcantel's admission that he looked down to check the tape player immediately before he struck the cow. After viewing a picture of Parish Line Road near the accident site and considering that the accident occurred in daylight on a straight road without any obstructions, the trial court found no reason why Mr. Marcantel should not have seen the white cow sooner than he did. In assessing the remaining 25% fault to Mr. Mayes, the trial court found that Mr. Mayes failed to exculpate himself from the presumption of negligence applied in "stock law" cases by explaining how the cow escaped from its enclosure. Both Mr. Mayes and Mr. Marcantel have appealed these findings.

Negligence of Mr. Mayes

Mr. Mayes argues that the trial court applied an improper burden of proof by requiring him to prove his freedom from fault. He contends that the 1996 amendment to La.Civ.Code art. 2321, overruling the strict liability interpretation given that article in Holland Buckley, 305 So.2d 113 (La.1974), has also eliminated the presumption of negligence that the courts have applied in "stock law" cases.

In his oral reasons, the trial court alluded to the burden of proof articulated in Young v. Sentry Insurance Co., 315 So.2d 93 (La.App. 3 Cir.), writ denied, 319 So.2d 419 (La.1975) and Ourso v. Grimm, 92-1274 (La.App. 3 Cir. 1/5/94); 630 So.2d 963, writs denied, 94-339 (La.3/25/94); 635 So.2d 231, and 94-346 (La.3/25/94); 635 So.2d 230. In Young, 315 So.2d at 95, we stated the following in interpreting La.R.S. 3:2803, the "stock law" statute applicable to state highways:¹

The jurisprudence interpreting said statute is well settled that when an automobile strikes a horse or cow on one of the aforementioned "stock law" highways, the burden of proof rests upon the owner of the animal to exculpate himself from "even the slightest degree of negligence". Schomider v. Allstate Ins. Co., 304 So.2d 825 (La.App. 3rd Cir.1974); writ refused, "no error of law", Feb. 14, 1975, 307 So.2d 639 (La.1975). Womack c. Rhymes, 300 So.2d 226 (La.App. 2nd Cir.1974), writ refused, "no error of law," Nov. 22, 1974, 303 So.2d 179 (La. 1974).

Thus, a legal presumption of fault or negligence on the part of the animal's owner is created in such cases. In order to rebut same the defendant must not only show that he has taken all reasonable and prudent measures and precautions to enclose his livestock, but must also explain the presence of the animal on the highway by...