City of Mangum v. Brownlee
| Decision Date | 11 January 1938 |
| Docket Number | 27685. |
| Citation | 75 P.2d 174,181 Okla. 515,1938 OK 6 |
| Parties | CITY OF MANGUM v. BROWNLEE. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. A city, which keeps a bear in its park, takes the risk of so keeping it that it will not injure persons invited on the premises, who are in the exercise of due care, and in an action by one injured under such circumstances, while a third party is leading the bear back to its inclosure, after its escape therefrom, the independent intervening act of such third person does not relieve the city from liability.
2. The right of a party to reopen a case for the purpose of introducing additional testimony rests in the sound discretion of the trial court, and the denial of a motion to reopen is not an abuse of discretion where the party has failed to use due diligence to procure the testimony before resting his case.
3. Where a boy is bitten on the calf of the leg by a bear, as a result of which he suffers physical pain and mental anguish and is compelled to use crutches for four or five weeks, and some months later is compelled to undergo an operation to correct a hernia of the muscle in his injured leg, and thereby is compelled again to use crutches for two weeks held a verdict of $1,100 is not excessive.
Appeal from District Court, Greer County; John B. Wilson, Judge.
Action by Earl Brownlee, by his father and next friend, F. B Brownlee, against the City of Mangum, Okl., for injuries sustained when a bear belonging to the defendant bit the plaintiff on the leg. From a judgment in favor of the plaintiff, the defendant appeals.
Judgment affirmed.
W. T Jeter, of Mangum, for plaintiff in error.
Robinson & Oden, of Altus, for defendant in error.
A bear, belonging to the city of Mangum, bit Earl Brownlee on the leg, and he sued for damages. The undisputed facts are substantially as follows: The city owned a park in which it maintained a swimming pool and a small zoo. The bear's den was just north of the swimming pool and consisted of a pit inclosed by a rock wall. The wall surrounding the pit extended about two feet above the ground. The only entrance to the den was by way of an underground passage leading from the inside of the bath house adjacent to the pool.
The bear escaped from its den and was caught by a visitor in the park by the name of Bill Bolen, who was a friend of the bear since it was a "little bitty fellow." Bolen had no connection with the city, but just happened to be there at the time. Bolen attempted to push the bear back over the wall into the den, but when the bear snapped at him, he led it into the bath house to take it through the passageway to the den. Plaintiff had purchased a ticket to the pool, had taken a swim, and was standing in the bath house waiting for his clothes As Bolen led the bear into the bath house, it grabbed plaintiff's leg with its teeth and held on for several minutes, being beaten off with a hammer.
Plaintiff was treated for several weeks by his family physician It was four or five weeks after the injury before he could walk without the use of crutches. Some months later he underwent an operation to correct what was called a hernia of the muscle in the calf of his leg The operation again required plaintiff to use crutches for two or three weeks. The jury returned a verdict in favor of plaintiff for $1,100. From judgment thereon, the defendant city brings this appeal.
(1) The defendant first contends that the act of Bolen in leading the bear to the inside of the bath house where it bit plaintiff was an independent intervening act of a third party which relieved defendant of liability. For this reason, it is contended that the court erred (1) in not sustaining defendant's demurrer to the evidence, (2) in not sustaining defendant's motion for an instructed verdict and (3) in refusing to give certain instructions requested by defendant in this connection. In answer to this proposition, the plaintiff argues that the defendant, by keeping an animal of this type, is an insurer against any injury caused by it. The doctrine of absolute liability has been established in this type of case by City of Tonkawa v. Danielson et al., 1933, 166 Okl. 241, 27 P.2d 348, wherein it is held that "the owner or keeper of a dangerous animal, classed as an animal feræ naturæ, such as a bear, takes the risk of so keeping it that it will not injure persons invited on the premises who are in the exercise of due care." For an exhaustive annotation on the doctrine of absolute liability as applied to keepers of wild animals, see 69 A.L.R. 500. In the instant case, contributory negligence was alleged as a defense in the answer of the defendant, but it was not supported by any evidence at...
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