Chandler v. Waugh

• Decision Date: 22 February 1973
• Citation: 274 So.2d 46,290 Ala. 70
• Parties: Bruce Kenton CHANDLER v. Henry WAUGH et al. SC 40.
• Court: Alabama Supreme Court

Page 46

274 So.2d 46

290 Ala. 70

Bruce Kenton CHANDLER v. Henry WAUGH et al.

SC 40.

Supreme Court of Alabama.

Feb. 22, 1973.

George W. Nichols, Jr., Tuscaloosa, for appellant.

Huie, Fernambucq & Stewart and E. D. Martenson, Birmingham, for appellees.

MADDOX, Justice.

The major question presented by this appeal is whether the owner of an animal which is running at large on a city street can be held liable in damages for his negligence if the animal causes an automobile accident which produces injury. Appellant contends that state law which requires proof that the owner Knowingly or Intentionally placed the animal in the street before recovery can be had is applicable only to areas outside cities which have adopted ordinances to prevent animals from running at large. Appellee says that in all cases of automobile accidents involving animals running at large, before liability attaches, it must be shown that the owner knowingly or intentionally put the animal in the highway or street.

This case arose out of an accident that occurred in the early morning of June 1, 1969, within the city limits of the city of Tuscaloosa. Plaintiff, Bruce Kenton Chandler, was a passenger in an automobile driven by David Shirley when the automobile was wrecked in an attempt to avoid hitting a horse which was standing on the road in the path of the Shirley automobile. The horse belonged to the defendant, Henry Waugh.

The driver, Shirley, attempted to avoid hitting the horse and in the process, the automobile overturned. Plaintiff was thrown from the car and seriously injured, and sought to prove loss of wages and medical expenses as a result of the accident.

Plaintiff charged in his complaint that the defendant negligently allowed his horse to run at large in the city limits. He also claimed that the defendant intentionally and wilfully allowed his horse to run at large but candidly admits that he failed to prove the allegations of this court, and he does not take issue with the trial court's action, directing a verdict on this count. Plaintiff does take issue with the trial court's order sustaining defendant's demurrer to each of his counts charging simple negligence.

Plaintiff contends that the city of Tuscaloosa had adopted a stock ordinance under the authority granted to it by Title 3, Section 101, Code of Alabama, 1940, which made it a nuisance to allow a horse to run at large within the city.

Defendant argued before the trial court, and also argued here, that because of the provisions of Title 3, Section 79, Code of Alabama, 1940, he is not liable for any damages to the plaintiff unless it is alleged and proved that he knowingly or wilfully put or placed the horse on the road where the damages were occasioned. Title 3, Section 79, provides:

'The owner of such livestock or animal being or running at large upon the premises of another or upon the public lands, roads, highways or streets in the state of Alabama shall be liable for all damages done to crops, shade or fruit trees or ornamental shrubs and flowers of any person, to be recovered before any court of competent jurisdiction; and the judgment of the court against the owner of such livestock or animal so depredating shall be a lien superior to all other liens on the livestock or animal causing the injury, except as to taxes. Provided, however, that the owner of any stock or animal shall not be liable for any damages to any motor vehicle, or any occupant thereof, suffered, caused by, or resulting from a collision with such stock or (other) animal, unless it be proven that such owner knowingly or wilfully put or placed such stock upon such public highway, road or street, where such damages were occasioned.' (Emphasis supplied.)

We are here concerned with the proviso in Section 79 which we have emphasized. If the defendant is correct, the trial court should have sustained defendant's demurrer. At first blush, it would appear that the proviso would be applicable here, but a study of the history of state stock laws indicates otherwise.

A review of laws regulating the keeping of animals indicates that areas within municipal limits have consistently been treated as separate stock law districts. At one time, municipalities were compelled by statute to adopt ordinances to prevent horses and other domestic animals from running at large. Act 419, Acts of Alabama, 1903, p. 365. In fact, a city could be compelled by mandamus to adopt an ordinance to prohibit animals from running at large. Huey v. Waldrop, 141 Ala. 318, 37 So. 380 (1904). The 1923 Code contained a similar provision which required municipalities to adopt ordinances to rpevent stock running at large in the city. Code, 1923, Section 10224. The 1907 Code contained a similar provision. Code, 1907, Section 5898. In the 1940 Code, the adoption of ordinances was made discretionary, the Legislature substituting the word 'may' for 'shall' which was in prior codes. Title 3, Section 101, Code, 1940, now reads:

'The governing bodies of all cities or towns May adopt all such ordinances and laws as shall be necessary to prevent the running at large within these limits of all livestock or animals, and to take up and impound all such livestock or animals found so running at large, and to fix, prescribe and provide for the collection of penalties and impounding fees for all such livestock or animals so taken up and impounded.' (Emphasis supplied.)

Since the passage of Act 419, Acts, 1903, it has been unlawful to allow livestock to run at large in the corporate limits of all towns and cities five thousand inhabitants or more. Code, 1907, Section 5897; Code, 1923, Section 10223; Title 3, Section 100, Code, 1940.

The proviso in Section 79, Title 38 Code, 1940, was first approved on September 13, 1939. Act 368, Acts, 1939, p. 487. Act 368 was known as the Local Option Stock Law for the state of Alabama. It was codified as Title 3, Sections 77--94, Code, 1940.

At the time the Local Option Stock Law was adopted, the Legislature made important exceptions. Section 17 of the 1939 Act and Section 94 of Title 3 provide that the provisions of the Local Option Stock Law cannot be construed to repeal any Municipal stock law, nor can the law be construed to prevent any municipality from enacting a stock law ordinance.

In view of the history of the various legislative grants and enactments, it seems reasonable to say that the intent of the Legislature was to make it unlawful for livestock to run at large in the corporate limits of cities and towns of five thousand inhabitants or more and to allow municipalities authority to adopt ordinances to prevent stock from running at large in the city or town.

Since we are construing various provisions of the 1940 Code as they relate to stock laws, we believe we should construe them together so as to produce a harmonious system, if possible. Donoghue v. Bunkley, 247 Ala. 423, 25 So.2d 61 (1946). The proviso in Section 79 was adopted at the same time Sections 94, 100 and 101 were adopted.

To construe the proviso in Section 79 to be inapplicable to municipalities which have adopted ordinances to prevent stock from running at large in the city limits is not inharmonious. Cities were the first stock law districts by virtue of state law. When the proviso in Section 79, Title 3, was adopted, municipalities were exempted from the provisions of the Local Option Stock Law specifically. Title 3, Section 94, Code. Furthermore, we believe that the proviso in Section 79 was adopted primarily to protect the owners of livestock from liability for simple negligence in rural areas where the stock is concentrated and the probability that stock could get out and onto highways would be more prevalent.

We think the Legislature, in adopting the proviso in Section 79, ¹ intended to make the owner or keeper of stock in areas outside municipalities (which had adopted stock laws or which enacted stock laws afterward) liable for damages in motor vehicle accidents caused by livestock only where the owner or keeper knowingly or wilfully placed or put the livestock on the highway, road or street. A reading of the various provisions of law relative to stock laws seems to show a legislative intention to separate the problem in the city from that of the county. Such distinctions are reasonable because of the problems--the automobile is more prevalent in cities and towns--livestock is more prevalent in areas outside cities and...