Cunningham v. Bundy

• Decision Date: 20 September 1979
• Docket Number: 13055,Nos. 12917,s. 12917
• Citation: 600 P.2d 132,100 Idaho 456
• Parties: John E. CUNNINGHAM and Georgia C. Cunningham, husband and wife, Plaintiffs, Respondents, and Cross-Appellants, v. Mary BUNDY and Eugene Bundy, Defendants, Appellants, and Cross-Respondents.
• Court: Idaho Supreme Court

Page 132

600 P.2d 132

100 Idaho 456

John E. CUNNINGHAM and Georgia C. Cunningham, husband and wife, Plaintiffs, Respondents, and Cross-Appellants, v. Mary BUNDY and Eugene Bundy, Defendants, Appellants, and Cross-Respondents.

Nos. 12917, 13055.

Supreme Court of Idaho.

Sept. 20, 1979.

Michael J. Verbillis, Coeur d'Alene, for plaintiffs-respondents and cross-appellants.

James W. Atwood, Coeur d'Alene, for defendants-appellants and cross-respondents.

BISTLINE, Justice.

On August 17, 1975, at about 8:15 p. m., plaintiff Georgia Cunningham was a passenger in a car being driven by her brother on a public highway along the Coeur d'Alene River in Shoshone County. Just after passing the Mary Bundy property, the car was struck by Eugene Bundy's horse which had gotten out of its fenced pasture and, apparently spooked, unsuccessfully attempted to jump over the passing car.

It was undisputed that: 1) plaintiff suffered a compression fracture of the second lumbar vertebra, resulting in some disability and medical expenses of $1,380.11; 2) the area in question was a herd district, Title 25, Chapter 24, I.C.; and 3) defendant Eugene Bundy owned the horse.

Plaintiff testified that at the time of the accident she was working with handicapped children, earning $1.60 per hour for 4 hours a day, but afterwards she could not work for over a year because she could not commute the 74 miles round trip. Plaintiff hence claimed lost wages of $2,080 ($6.40 per day times 5 days per week times 65 weeks). She also testified to having noticed that the gate to the Bundy property was open as they drove past. Defendants did not contest the plaintiff's injuries; rather, they argued that I.C. § 25-2408 requires proof of negligence before liability can be imposed, and that they were not negligent. Although Mary Bundy owned the property, her son Eugene owned and cared for the horse. They claimed the gates were closed on the night in question and said they had checked when a visitor left, as they always did. They stated that the fences were always checked when the dogs were taken out and that they had all been in good repair that day. Eugene Bundy testified that the fence to the first pasture (where cattle were kept) was knocked Inward and the gate from there to the second pasture (where the horse was kept) was open. The cattle as well were later found outside. He stated his belief that elk or moose had knocked the fence and gate down. In his deposition he had stated he had no idea how the horse got out; at trial he tried, with limited success, to explain this change of opinion.

On this testimony the district court held that defendant Mary Bundy was not responsible and on her motion the action against her was dismissed. Judgment was entered for plaintiff against Eugene Bundy for $6,380.11, this being medicals plus $5,000 for pain and suffering. Lost wages were denied on the grounds that the operating costs for the 74 miles round trip exceeded the $6.40 plaintiff would earn, and the work was essentially charitable in nature. Defendant Eugene Bundy has appealed the judgment against him, claiming that the inference that he was negligent has been overcome.

Respondent contends that the judgment is sustained by this finding:

"The Court further finds that the plaintiff was free of any negligence and the defendant Eugene Bundy was negligent in that the accident would not have happened but for the negligence of the defendant in permitting the horse to be unlawfully on the roadway within the boundaries of the herd district, which raises an inference of negligence on the defendant Eugene Bundy, and the defendant Eugene Bundy wholly failed to sustain his burden of showing that he was free from negligence in permitting said horse to be on said roadway at said time and place."

Given these specific findings, ¹ our review is narrowed to a consideration of the applicable law.

"Appellant's land was fenced, and was located in a herd district. The burden rested upon (Defendant ) 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.

"The law itself supplies the presumption that the animal was unlawfully on the highway at the time and place of the collision unless satisfactorily explained by the owner. Whether appellant did or did not satisfactorily explain the animal's presence upon the highway as being lawful at the time and place of the collision, in the light of the evidence, was for the trier of the facts; and the trier of the facts resolved that issue in favor of respondent and against appellant."

Corthell v. Pearson, 88 Idaho 295, 298-300, 399 P.2d 266, 268-271 (1965). Similarly, in Whitt v. Jarnagin, 91 Idaho 181, 418 P.2d 278 (1966):

"(N)ot only did respondent Jarnagin have the burden of proving, which he did not, that the animal was lawfully on the highway, since it was in a herd district and not kept on unenclosed land or open range, I.C. §§ 25-2118 and 25-2119; Corthell v. Pearson, supra; but he did not come forth with any explanation, other than the fact that he had no knowledge of the removal of the cattle guard and the presence of the animal on the highway at said time and place."

Id., 91 Idaho at 187, 418 P.2d at 284.

The trial court's legal conclusions are in conformity with the principles of the foregoing cases. See also Safford Animal Hospital v. Blain, 119 Ariz. 296, 580 P.2d 757 (1978).

We have examined the record and conclude that the factual findings made by ...