Duren v. Kunkel, No. 73326

CourtUnited States State Supreme Court of Missouri
Writing for the CourtHOLSTEIN; ROBERTSON, C.J., RENDLEN, COVINGTON and BLACKMAR, JJ., and HIGGINS and HOUSER; BENTON
Citation814 S.W.2d 935
Docket NumberNo. 73326
Decision Date10 September 1991
PartiesBernard DUREN, Respondent, v. Ohmer KUNKEL, Jr., Appellant.

Page 935

814 S.W.2d 935
Bernard DUREN, Respondent,
v.
Ohmer KUNKEL, Jr., Appellant.
No. 73326.
Supreme Court of Missouri,
En Banc.
Sept. 10, 1991.

R. Max Humphreys, Jefferson City, for appellant.

James J. Wheeler, Keytesville, for respondent.

HOLSTEIN, Judge.

Defendant Ohmer Kunkel, Jr., appeals from a judgment awarding plaintiff Bernard Duren $100,000 for personal injuries sustained when Duren was attacked by a bull owned by Kunkel. Following opinion by the Missouri Court of Appeals, Western District, transfer was granted to this Court. Rule 83.03. Reversed and remanded.

Page 936

The single issue raised by the appellant is whether plaintiff made a submissible case. Kunkel contends the trial court should have sustained his motions for directed verdict and judgment notwithstanding the verdict because the evidence was insufficient to prove the bull in question had a dangerous propensity. In response, plaintiff asserts that a submissible case was made showing the bull's vicious propensity or, if a case was not made on that theory, plaintiff should have been permitted to submit on a theory of defendant's negligent failure to provide sufficient manpower in handling the bull. An instruction was tendered and refused on the latter theory. In reviewing a ruling on motions for directed verdict and judgment notwithstanding the verdict, the evidence is taken in a light most favorable to the verdict. The prevailing party is entitled to the benefit of all reasonable inferences favorable to the verdict, and evidence unfavorable to the verdict is disregarded. Stark v. American Bakeries Co., 647 S.W.2d 119, 121 (Mo. banc 1983). The recital of the facts is made with these standards in mind.

In May of 1986, Kunkel bought a limousin bull at a sale. The bull was mature, weighing about 1800 pounds. Kunkel told Duren that he got the bull "a little cheaper" because the bull "acted up" in the sale ring. 1 The exact nature of the bull's conduct was not disclosed, but Duren understood "acting up" to mean trying to climb a fence, snorting and pawing. Kunkel had the bull delivered to his farm. After the bull arrived at the farm, Kunkel kept it in a separate pen for two or three days until it "settled down."

On June 27, 1987, Duren was at Kunkel's farm assisting in separating cattle in preparation for castrating and immunizing calves. Duren and Kunkel owned neighboring farms. They had often exchanged work of that kind. The calves were separated from the cows and the limousin bull was left with the calves in a corral. Kunkel wanted the bull moved because of his concern that the bull would "get together" with a longhorn bull that was just "over the fence" from the corral where the limousin bull was located. Kunkel directed Duren to move the bull out of the corral. To do so required that the bull be moved past and very near where the calves had been castrated. The castration of between fifteen to twenty calves had left a quantity of blood on the ground. Duren proceeded as directed.

Acting alone, Duren drove the bull to a point about six feet from where the blood was on the ground. At that point, the bull turned and attacked Duren. Duren was knocked unconscious and sustained substantial and permanent injuries.

Expert testimony was presented as to the general character of bulls and limousin bulls in particular. Plaintiff's primary expert witness was Dr. J.W. Smith, a veterinarian with over forty-six years experience in a large animal practice. He had contact with herds all over the area on a daily basis. According to him, limousin bulls are the most aggressive of all beef breeds. Dr. Smith testified that all bulls are dangerous, but limousins tend to be more aggressive and active than other breeds. He stated that most bulls react aggressively in the presence of blood and it would be especially dangerous for one man to attempt to move a bull alone. The safe method, according to Dr. Smith, would require that there be more than one man or a few cows with the bull. In addition, an experienced cattle farmer testified that the smell of blood excites bulls, and driving a bull near fresh blood causes a bull to be more excitable and dangerous.

On the above evidence, the jury found Kunkel and Duren to each be fifty percent at fault. Duren's damages were assessed at $200,000. A judgment of $100,000 was entered for the plaintiff. The question now is whether the evidence is sufficient to make this case submissible.

The law in Missouri has long been that one who harbors a domestic animal with dangerous propensities known to the owner may be held liable even without a

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showing of negligence on the part of the owner. Clinkenbeard v. Reinert, 284 Mo. 569, 225 S.W. 667, 668 (banc 1920). 2 This rule has been applied to liability of the owners of cattle. Alexander v. Crotchett, 124 S.W.2d 534, 537 (Mo.App.1939); Maisch v. Kansas City Stock Yards Co. of Maine, 241 S.W.2d 487, 492 (Mo.App.1951). The Missouri rule, and that followed in most jurisdictions, is:

A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class is subject to liability for harm done by the animal to another, although he has exercised the utmost care to prevent it from doing harm.

Restatement (Second) of Torts, § 509(1) (1977). Rules imposing liability for harm caused by domestic animals find their origin in authority no less ancient than the Pentateuch. 3

The rule requiring actual or constructive knowledge of an...

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19 practice notes
  • Heins Implement Co. v. Missouri Highway & Transp. Com'n, No. 75313
    • United States
    • United States State Supreme Court of Missouri
    • August 17, 1993
    ...party all reasonable beneficial inferences that can be drawn from the verdict and disregarding the unfavorable evidence. Duren v. Kunkel, 814 S.W.2d 935, 936 (Mo. banc 1991). The facts thus established by the record are as Appellants own or rent commercial and agricultural property along th......
  • Doerr v. Goldsmith, Nos. 17, 66
    • United States
    • New York Court of Appeals
    • June 9, 2015
    ...349 Md. 495, 709 A.2d 140 (1998) ; Trager v. Thor, 445 Mich. 95, 104–105, 516 N.W.2d 69, 75 (1994) ; 35 N.E.3d 820 Duren v. Kunkel, 814 S.W.2d 935, 938–939 (Mo. 1991) ; Huber v. Timmons, 184 Neb. 718, 722, 171 N.W.2d 794, 797 (1969) ; DeRobertis by DeRobertis v. Randazzo, 94 N.J. 144, 156, ......
  • Doerr v. Goldsmith
    • United States
    • New York Court of Appeals
    • June 9, 2015
    ...495, 709 A.2d 140 (1998) ; Trager v. Thor, 445 Mich. 95, 104–105, 516 N.W.2d 69, 75 (1994) ; 35 N.E.3d 82014 N.Y.S.3d 750Duren v. Kunkel, 814 S.W.2d 935, 938–939 (Mo. 1991) ; Huber v. Timmons, 184 Neb. 718, 722, 171 N.W.2d 794, 797 (1969) ; DeRobertis by DeRobertis v. Randazzo, 94 N.J. 144,......
  • Vendrella v. Astriab Family Ltd., No. 18949.
    • United States
    • Supreme Court of Connecticut
    • April 1, 2014
    ...injured by the animal while on the owner's or keeper's premises depends on the injured person's entrant status. See Duren v. Kunkel, 814 S.W.2d 935, 938 (Mo.1991); DeRobertis v. Randazzo, 94 N.J. 144, 157, 462 A.2d 1260 (1983); Dunnings v. Castro, 881 S.W.2d 559, 563 (Tex.App.1994); but see......
  • Request a trial to view additional results
19 cases
  • Heins Implement Co. v. Missouri Highway & Transp. Com'n, No. 75313
    • United States
    • United States State Supreme Court of Missouri
    • August 17, 1993
    ...party all reasonable beneficial inferences that can be drawn from the verdict and disregarding the unfavorable evidence. Duren v. Kunkel, 814 S.W.2d 935, 936 (Mo. banc 1991). The facts thus established by the record are as Appellants own or rent commercial and agricultural property along th......
  • Doerr v. Goldsmith, Nos. 17, 66
    • United States
    • New York Court of Appeals
    • June 9, 2015
    ...349 Md. 495, 709 A.2d 140 (1998) ; Trager v. Thor, 445 Mich. 95, 104–105, 516 N.W.2d 69, 75 (1994) ; 35 N.E.3d 820 Duren v. Kunkel, 814 S.W.2d 935, 938–939 (Mo. 1991) ; Huber v. Timmons, 184 Neb. 718, 722, 171 N.W.2d 794, 797 (1969) ; DeRobertis by DeRobertis v. Randazzo, 94 N.J. 144, 156, ......
  • Doerr v. Goldsmith
    • United States
    • New York Court of Appeals
    • June 9, 2015
    ...495, 709 A.2d 140 (1998) ; Trager v. Thor, 445 Mich. 95, 104–105, 516 N.W.2d 69, 75 (1994) ; 35 N.E.3d 82014 N.Y.S.3d 750Duren v. Kunkel, 814 S.W.2d 935, 938–939 (Mo. 1991) ; Huber v. Timmons, 184 Neb. 718, 722, 171 N.W.2d 794, 797 (1969) ; DeRobertis by DeRobertis v. Randazzo, 94 N.J. 144,......
  • Vendrella v. Astriab Family Ltd., No. 18949.
    • United States
    • Supreme Court of Connecticut
    • April 1, 2014
    ...injured by the animal while on the owner's or keeper's premises depends on the injured person's entrant status. See Duren v. Kunkel, 814 S.W.2d 935, 938 (Mo.1991); DeRobertis v. Randazzo, 94 N.J. 144, 157, 462 A.2d 1260 (1983); Dunnings v. Castro, 881 S.W.2d 559, 563 (Tex.App.1994); but see......
  • Request a trial to view additional results

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