Corthell v. Pearson

• Decision Date: 16 February 1965
• Docket Number: No. 9374,9374
• Citation: 88 Idaho 295,399 P.2d 266
• Parties: Floyd L. CORTHELL, Plaintiff-Respondent, v. Frank PEARSON, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 266

399 P.2d 266

88 Idaho 295

Floyd L. CORTHELL, Plaintiff-Respondent, v. Frank PEARSON, Defendant-Appellant.

No. 9374.

Supreme Court of Idaho.

Feb. 16, 1965.

Harry Turner, Twin Falls, for appellant.

Murphy, Schwartz & Cunningham, Twin Falls, for respondent.

SMITH, Justice.

On October 31, 1961, at 9:15 o'clock P. m., respondent was driving his automobile in a northerly direction on U. S. Highway No. 30 approximately seven miles northwest of Buhl, Idaho. He was proceeding at a speed of 50 to 55 miles per hour when he met an oncoming vehicle and was temporarily blinded by its headlights. After this car had passed, respondent observed a cow on the highway directly in front of him. He applied his brakes, but could not avoid striking the animal.

The collision caused substantial damage to respondent's automobile. He brought this action for recovery of damages, against appellant, owner of the animal, a 3-year old heifer. In his complaint respondent alleged negligence on the part of appellant in allowing the animal to be on a public highway in the nighttime, and in failing to keep the animal in a properly fenced enclosure, within the boundaries of a herd district.

Appellant in his answer admitted his ownership of the animal, and admitted the collision between it and respondent's automobile causing damage to the vehicle; he also admitted that the general area where the collision occurred was within a herd district. See I.C. Tit. 25, ch. 24, relating to herd districts. At the conclusion of the trial before the district court sitting without a jury, the court entered judgment against appellant in favor of respondent for the damages to his automobile resulting from the collision, from which judgment appellant perfected this appeal.

Appellant assigns the single error committed by the court, 'in entering judgment for the Plaintiff against the Defendant.' In effect he argues, that the judgment is against the law applicable to the facts involved in the case, and that the evidence is insufficient to support the judgment.

I.C. § 25-2119, enacted by the legislature in 1961, reads:

'No person owning, or controlling the possession of, any domestic animal lawfully on any highway, shall be deemed guilty of negligence by reason thereof.' (Emphasis supplied.)

I.C. § 25-2118 also enacted by the legislature in 1961, reads:

'No person owning, or controlling the possession of, any domestic animal running on open range, shall have the duty to keep such animal off any highway on such range, and shall not be liable for damage to any vehicle or for injury to any person riding therein, caused by a collision between the vehicle and the animal. 'Open range' means all unenclosed lands outside of cities, villages and herd districts, upon which cattle by custom, license, lease, or permit, are grazed or permitted to roam.'

I.C. § 25-2408, in part, reads:

'The owner of animals permitted or allowed to run at large, or hearded in violation of any order made in accordance with the provisions of section 25-2404 [order creating a heard district], shall be liable to any person who shall suffer damage from the depredations or trespasses of such animals, without regard to the condition of his fence;'

The parties to this cause waived findings of fact and conclusions of law. In entering the judgment in favor of respondent, the trial court thereby resolved, in respondent's favor, the issue of appellant's negligence as alleged by respondent, i. e., in allowing his heifer to be on the public highway at night, and in failing to keep the animal in a properly fenced enclosure while within the boundaries of the herd district.

In Soran v. Schoessler, 87 Idaho 425, 394 P.2d 160 (1964), defendant-appellant Schoessler advanced two grounds for escapement from the judgment, which the court resolved against him, i. e., first, the insufficiency of the evidence to sustain the judgment, and second, that the statute did not impose an affirmative duty upon a livestock owner to fence in his livestock, except in those areas in which a herd district exists.

Schoessler contended that the legislature by enacting I.C. § 25-2119 intended to relieve a livestock owner of liability 'under circumstances set forth in the statute'. That section of the statute, however, relieves from negligence any person owning, or controlling the possession of, a domestic animal lawfully on a highway. Moreover I.C. § 29-2118 impliedly makes it the duty of a person owning, or controlling the possession of, a domestic animal, to keep such animal off the highway, unless the highway is on open range; and does not absolve such person from liability for damages to a vehicle or injury to a person caused by a collision between the vehicle and any such animal, unless the highway is on open range; and defines 'open range' to mean all unenclosed land outside of cities, villages and herd districts, upon which cattle by custom, license, lease, or permit, are grazed or permitted to roam.

Appellant's land was fenced, and was located in a herd district. The burden rested upon appellant under the provisions of the aforesaid sections of the statute to show that his domestic animal was lawfully on the highway; otherwise, under I.C. § 25-2119, the implied duty rested upon appellant to keep his animal off the highway, since the land was in a herd district and not on 'open range'. See Shepard v. Smith, 74 Idaho 459, 263 P.2d 985 (1953), and O'Connor v. Black, 80 Idaho 96, 326 P.2d 376 (1958), wherein was applied the doctrine of res ipsa loquitur as to animals on the highway during the nighttime.

With reference to whether any of the fences were down, on the particular night that the animal escaped onto the highway, and whether they were down the next day defendant [appellant] testified on direct examination:

'Q. Were any of the...