Chaney v. Vaughn

• Citation: 245 So.3d 1208
• Decision Date: 28 February 2018
• Docket Number: No. 51,795–CA,51,795–CA
• Parties: Matthew CHANEY, Plaintiff–Appellee v. Randy VAUGHN and Lori Vaughn, Defendants–Appellants
• Court: Court of Appeal of Louisiana (US)

245 So.3d 1208

Matthew CHANEY, Plaintiff–Appellee

v.Randy VAUGHN and Lori Vaughn, Defendants–Appellants

No. 51,795–CA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered February 28, 2018

HALES AND STRICKLAND, By: Myrt T. Hales, Jr., Joshua L. Strickland, Counsel for Appellants

NELSON, ZENTNER, SARTOR & SNELLINGS, LLC, By: F. Williams Sartor, Jr., Counsel for Appellee

Before PITMAN, STONE, and GASKINS (Ad Hoc ), JJ.

GASKINS (Ad Hoc ), J.

Randy and Lori Vaughn (the "Vaughns") appeal a judgment finding them liable for damages sustained by Matthew Chaney when a vehicle driven by Chaney struck a black cow owned by the Vaughns on a stock-law highway in Richland Parish. We affirm.

FACTS

The Vaughns raise cattle on property in Richland Parish that is west of and adjacent to an approximately 1.25– to 1.5–mile stretch of Louisiana Highway 583 as it runs north from its intersection with Louisiana Highway 852. A pasture that is referred to as the Vaughns' "home pasture" is located along about 0.5 miles of this stretch. The portion of the home pasture facing the highway is enclosed by a two-strand electrical fence, with the remainder enclosed by a barbed wire fence.

Chaney was a volunteer fireman in Richland Parish. At 2:00 a.m. on January 5, 2012, he received a call over his radio about a fire. He was unable to use his own vehicle because it was blocked in at his parents' home where he was spending the night, so Chaney drove his parents' Chrysler Pacifica to the fire. The Pacifica was not equipped with a siren or flashing lights. As Chaney drove 75 mph south on Highway 583, the left front of the Pacifica struck a black cow that was in the highway approximately 0.3 miles north of Highway 852. The Pacifica landed in a ditch to the west of the highway, while the cow landed in a ditch on the opposite side of the highway.

Richland Parish Sheriff's Deputy Loyd Hamm was the first law enforcement officer to reach the accident scene. He recalled that upon arriving, he saw several other cows on the highway about 100–200 feet from the crash, and that these cows jumped to the west and into the Vaughns' pasture in response to his activated lights and siren.

Richland Parish Sheriff's Deputy Roger Achord also responded to the accident. Deputy Achord, who arrived after Deputy Hamm, did not see a cow at the scene other than the one struck by Chaney.

A sheriff's dispatcher called the Vaughns' home, which was located to the north of the home pasture, to inform them of the accident. Lori Vaughn and her son Travis Cowell drove the short distance to the site. The fence near the accident scene was a two-strand electrical fence, and Lori did not see the fence down near where the accident occurred. Travis recalled that after he arrived, he checked the fence with a pair of fencing pliers and found that the fence was still "hot." Travis added that he got a good spark on the fence, which he said he would not have gotten if the fence had been down in any location. Lori remembered seeing a spark from the fence that night. After checking the fence, Lori and Travis went to the ditch to look at the cow. Lori claimed that because the cow landed with her head underneath the body, she could tell only that it was a black cow.

Master Trooper Kenneth Baker from the Louisiana State Police took over the accident investigation when he arrived on the scene approximately 40 minutes after the accident. Trooper Baker recalled that Lori said the cow belonged to them when he asked her. When Lori requested to move the cow, he told them to wait until daybreak. Around sunrise that morning, the cow was dragged to a site on the Vaughns' property, where it remained unburied.

Lori claimed that as soon as she was able to inspect the cow, she knew it did not belong to them because not only did she not recognize it, but it also lacked an ear tag or any indication that it had ever had an ear tag. Lori's husband, Randy Vaughn, returned home on the weekend following the accident after being out of town because of his job. Randy maintained that he knew the black cow struck by Chaney's vehicle was not one of his cows when he examined it.

Trial

Chaney filed suit against Randy and Lori Vaughn on October 22, 2012. He alleged that they owned the cow in question and the accident was caused by their negligence in failing to: (i) keep a proper lookout, (ii) maintain control of their livestock, (iii) pay proper attention to fence conditions, and (iv) make proper repairs to their fences. The Vaughns filed an answer denying ownership of the cow.

The trial judge heard testimony from Chaney, Cowell, and the Vaughns. The depositions of Deputies Achord and Hamm, Trooper Baker, and Major Claude Mercer, who had worked as an investigator for Chaney's attorney, were admitted into evidence. Major Mercer testified as an expert in accident investigations.

Lori believed that she was called to the scene as the presumed owner of the cow. She maintained that when Trooper Baker asked who owned the cow, she responded that she guessed it could be her cow. Lori stated that although she told Trooper Baker that it could be her cow, at that time she had no way to positively identify it because it was in a water-filled ditch with its head underneath the body. Once the cow was dragged out of the ditch, she did not recognize the cow or see any tags or holes in its ears. Lori, who claimed that she was familiar with the cows and had named most of them, added that she would not have said it was their cow that night had she been able to see the cow's head. Travis testified that he was unable to tell whether or not it was his mother's cow when it was in the ditch because he could not see any identifying tags or markings.

Trooper Baker observed Lori and Travis walk down to the ditch to look at the cow. He did not recall them lifting the cow or trying to move its head. Deputy Hamm testified that he heard Lori tell Trooper Baker that it was their cow.

Trooper Baker looked down into the ditch for any identifying marks on the cow. He would have noted any tags or tattoos on the cow as his practice was to record this information. Photographs of the accident scene were taken by Trooper Baker. Neither deputy inspected the cow.

Randy explained that all of his cows had plastic ear tags that measured approximately two-thirds of a pencil in length, and one-half of a pencil in width. The tags were usually placed in the left ear. Randy further explained that if a tag was accidentally removed by a cow fighting or the tag getting caught on something, then it would have been either ripped across the ear or pulled through the ear making a hole as big as the tag itself. Neither Lori nor Travis found a tag or a hole or tear in the cow's ears when they examined it after the cow was removed from the ditch. Randy inspected the cow's ears upon returning home and did not see a tag or any tears or holes indicating that a tag had ever been placed in the cow's ear.

Lori stated she observed no holes in the cow's ears, which meant it never had an ear tag. She explained that once an ear is tagged, the hole remains in the cartilage, and if the tag is torn out, it leaves a slice since the cartilage will not heal because of low blood flow. She estimated that a tag would leave a hole in the ear about the size of an ink pen.

According to Travis, he specifically looked at the cow's head and ears after it was removed from the ditch to see if he could identify it, and he did not see a tag or a hole where a tag had been. In Travis's opinion, a tag had never been placed in the cow's ear because a tag leaves a permanent hole that is very visible.

Travis took photos of the cow after it was dragged out of the ditch, while Randy took photos of the cow's ear when he returned home. The photos, which were admitted into evidence, were taken to show the absence of an ear tag or any holes or tears in the cow's ears. Also admitted into evidence were photographs of a calf and another cow owned by the Vaughns. Lori had named the other cow "Grabber," and the Vaughns maintained that the bottom of a white ear tag could be seen at the top of one of the photos of Grabber.

The Vaughns also maintained that they had the same number of cattle before and after the accident. The cattle, not all of which were black, had been counted about a month prior to the accident when they were wormed, and the count showed 72 cows and 3 bulls in the home pasture. They counted the cattle again several weeks after the accident when they were moved to another pasture. The count remained 72 cows and 3 bulls, with no cows missing but a few calves added. Lori admitted keeping a ledger showing the number of cows, but she did not bring the ledger to trial.

Randy testified that other individuals own black cows in the immediate proximity of his property. He stated that black cows were located north of his property on the east side of Highway 583. He added that south of Highway 852, there were black cows in pastures on both sides of Highway 583. Randy admitted there were no black cows directly to the east of his property on the north side of 852, or next to the home pasture. Lori stated that her husband's testimony regarding the location of nearby black cows was accurate.

Deputy Achord did not see any other cows nearby while at the accident scene, and to his knowledge, the Vaughns' pasture was the closest one to the accident scene.

Major Claude Mercer, who had been with the Louisiana State Police for 34 years and had been in charge of criminal investigations, was working for the Richland Parish Sheriff's Office at the time of his deposition. Chaney met with Major Mercer at the accident scene on January 18, 2012. Major Mercer drove several miles north of the accident site and did not see any cows. When he drove south on Highway 583, he saw cows to his left as he passed the intersection with Highway 852, but none of the cows were black.

Randy acknowledged that an electrical fence will sometimes short out, and that Farm...