Doe v. Barnett

• Decision Date: 29 October 1969
• Docket Number: No. 269A39,No. 2,269A39,2
• Citation: 19 Ind.Dec. 88,145 Ind.App. 542,251 N.E.2d 688
• Parties: Charles DOE, Appellant, v. Ben BARNETT and Esther Barnett, Appellees
• Court: Indiana Appellate Court

Page 688

251 N.E.2d 688

145 Ind.App. 542

Charles DOE, Appellant, v. Ben BARNETT and Esther Barnett, Appellees.

No. 269A39.

Appellate Court of Indiana, Division No. 2.

Oct. 29, 1969.

Rehearing Denied Nov. 25, 1969.

G. Edward McHie, Ronald K. Gehring, Peters, McHie, Enslen & Moran, Hammond, for appellant

John E. Leeney, Timothy P. Galvin, Jr., Galvin, Galvin & Leeney, Hammond, for appellees.

SHARP, Judge.

The Appellant-Plaintiff, Charles Doe, commenced this action by filing his complaint on September 2, 1966, the essential allegations of which are:

'1. That on September 6, 1964, the defendants owned certain real estate in St. John, Indiana, on which they resided; that on said real estate the defendants kept and maintained several horses.

2. That on said date the plaintiff and his minor son, Timothy Doe, age 7, were 3. That shortly after the plaintiff and his said minor son entered said corral, one of the horses owned and kept by the defendants bit the said minor son of the plaintiff on the left side of his face; that said bite caused a severe laceration and caused severe and permanent damage to the nerves in his face and has left a permanent scar; that the nature and extent of said physical injury, and because of its location on the face of the said Timothy Doe, has, in addition to the pain and suffering and permanent physical damage caused thereby, has had an emotional and psychological effect on the said Timothy Doe.

visiting on said premises owned and occupied by the defendants; that at said time and place the defendants invited the plaintiff and his said minor son into a certain corral located thereon and in which the defendants' said horses were then kept.

4. That by reason of said injury, the plaintiff as the natural father and person liable for the support, maintenance, and care of the said Timothy Doe, incurred numerous and extensive hospital and doctor bills in the care and treatment of said injury, and will in the future be required to spend additional sums of money for medical care for said injury.

5. That as a direct and proximate result of said injury the plaintiff has lost the services of his said minor child all to the damage of the plaintiff.

6. That said bite and resultant injury to Timothy Doe and the resultant damages to the plaintiff, were the direct and proximate result of the negligence of the defendants in inviting the plaintiff and his said minor son into said corral when the defendants knew or in the exercise of reasonable care should have known that their said horse would bite the said Timothy Doe, and in failing to warn the plaintiff or his said minor son of the danger of entering said corral and being in the vicinity of said horse and that said horse had a propensity for biting or would likely bite persons in said corral and in the vicinity of said horse.'

On February 6, 1968, the Defendants-Appellees filed their Motion for Summary Judgment which had attached thereto the affidavits of each Appellee. The essential allegations of the affidavit of Appellee, Ben Barnett, are:

'3. That on or about the 6th day of September, 1964, Esther Barnett and I were the owners of a certain real estate at R.R. 1, Box 460, Dyer, Indiana; and that on said date the plaintiff, Charles Doe, together with his minor son, Timothy Doe, visited our home as social visitors at the above address; that Esther Barnett and I on said date owned a certain Gelding horse which was confined within an enclosed area and that said Timothy Doe, while in said confined area, was bitten by said Gelding horse.

4. That your affiant purchased said horse on or about April 11, 1964 from a Francis E. Schmidt, Jr. and that the said Francis E. Schmidt, Jr. never warned or advised your affiant that said Gelding horse was vicious in character nor that it had ever caused injury to any one prior to the date of the occurrence herein complained of.

EXHIBIT A

5. That from the date your affiant purchased said horse until the date of the occurrence herein complained of your affiant had no knowledge or information that said animal was vicious in character and that as your affiant is informed and variably believes said animal had never prior to the date of the occurrence caused or attempted to cause injury to any person.'

The allegations of the affidavit of Appellee, Esther Barnett, are essentially duplications of those contained in the affidavit of Ben Barnett.

In response to the Appellees' Motion for Summary Judgment the Appellant filed the counteraffidavit of Charles Doe. The essential allegations of the affidavit of Charles Doe are:

'3 That the affiant was present at the time of the incident alleged in the complaint herein; that at no time did either of the defendants warn plaintiff or the children with him, including Timothy Doe, that the horses in the corral were eating or that the children should stay away from the horses, nor did they make any attempt to keep the children in any one area or away from the horses; that, on the contrary, the defendants brought and led the affiant and his minor children, including Timothy Doe, directly to and within a few feet of where the horses in the corral were eating.

4. That on September 6, 1964, and after the incident alleged in the complaint, the defendant Ben Barnett told his affiant that the horse which bit Timothy Doe, had on previous occasion shied and reared and appeared disturbed and reacted when the said Ben Barnett had brought said horse into the barn; and further said that he, Ben Barnett, attributed this to the fact that he was wearing glasses and that the reflection from the glasses caused the horse to so react.

5. That at the time of the incident alleged in the complaint, the said Timothy Doe was wearing glasses and at no time did either of the defendants warn affiant or Timothy Doe or anyone else present that one of said horses might react to a person wearing glasses.'

The deposition of Appellees, Ben Barnett and Esther Barnett were taken on September 7, 1968, and were filed and published. These depositions were properly before the court when it considered and ruled upon Appellees' Motion for Summary Judgment. The Appellant has emphasized the following testimony contained in the deposition of Esther Barnett:

'Q. Did you ever go around the horses much while they were eating hay, or would you stay away from them them while they were eating?

A. I can go around the horses or my children can go around the horses at any time, providing you let them know you're approaching them.

Q. That's something you would know because you're used to horses and have been around them for awhile?

A. We know, any animal, you can't startle.

Q. How do you let them know you're approaching?

A. Either talk to them, or touch them.

Q. What happens if you startle a horse and don't let them know you're coming towards them when they're eating hay?

A. Most of the time they would just continue eating, unless they were startled to the point where they though they were being hurt or going to be hurt--they could kick out.

Q. Based on your knowledge of horses, it's a good idea when you're approaching a horse that's eating, to let them know you're coming towards them, is that right?

A. At any time whether eating or not.'

On September 27, 1968, the trial court granted Appellees' Motion for Summary Judgment and this is the sole assignment of error here.

There are two basic considerations for our concern: (a) the substantive law with regard to the liability of the owner of a horse, and, (b) whether the record discloses any genuine issue as to any material fact so as to avoid summary judgment.

In Klenberg v. Russell, 125 Ind. 531, 534, 25 N.E. 596, 597 (1890), our Supreme Court stated:

'In Shearman & Redfield Law of Negligence, (section 629), it is said: 'But the owner of creatures which, as a species, are harmless and domesticated, and are kept for convenience or use, such as dogs, cattle, horses, and even bees, is not liable for injuries wilfully committed by them unless he is proved to have had notice of the inclination of the particular animals complained of to commit such injuries. If, having had such notice, he neglects to keep them confined where no one can suffer from them while using ordinary care, he is liable for all injuries committed by them. And the owner, even of a wild beast, is not liable for injuries caused by it in a manner which no acquaintance with its nature would have led him to expect, except upon similar evidence of notice.'

As the complaint fails to allege that the cow had an evil disposition, such as would lead her to attack human beings, necessarily there is no charge that the appellant had notice of any such evil disposition; and as the willful conduct of the animal in attacking the appellee was not such as the appellant had a right to expect, or might anticipate, he is not responsible for the injury caused by such unexpected and willful conduct.

In Cooley on Torts, at page 403, it is said: 'But there are other mischiefs which may be committed by domestic animals that one is under no obligation to anticipate and guard against, because they are not the result of a general propensity, but are committed, if at all, by exceptionally vicious individuals of the particular species of animals. Thus, though any horse will roam into the neighboring fields if not restrained from doing so, it is only in rare and exceptional cases that a horse will attack and injure those who come near him. Therefore, while the owner should anticipate and protect against trespass upon lands by his horses, he is under no moral obligation to anticipate that a horse, in which no such disposition has been discovered, will suddenly make an assault upon and kick and bite some passer-by who chances to come within his reach. For this reason the keeper of a domestic animal is not in general responsible for any mischief that may be done by such animal, which was of a kind not to be expected from him, and which it would...