Finneran v. Wood

• Court: Maryland Supreme Court
• Writing for the Court: Before HAMMOND; McWILLIAMS
• Citation: Finneran v. Wood, 249 Md. 643, 241 A.2d 579 (Md. 1968)
• Decision Date: 08 May 1968
• Docket Number: No. 212,212
• Parties: Merna L. FINNERAN and John E. Finneran v. Edward B. WOOD.

Page 643

249 Md. 643

241 A.2d 579

Merna L. FINNERAN and John E. Finneran v. Edward B. WOOD.

No. 212.

Court of Appeals of Maryland.

May 8, 1968.

Joseph F. McBride, College Park (Bill L. Yoho, Robert S. Hoyert, Roy W. Hooten and Hoyert & Yoho, College Park, on the brief), for appellants.

Wilbur D. Preston, Jr., Baltimore (William B. Whiteford and Due, Whiteford, Taylor & Preston, Baltimore, on the brief), for appellee.

Before HAMMOND, C. J., and HORNEY, mcWILLIAMS, FINAN and SINGLEY, JJ.

McWILLIAMS, Judge.

The central figure in this contretemps is an 8 year old 16 hand bay mare of dubious lineage, named Tiara. She belongs to the appellee (Wood) who had stabled her, temporarily, on the property of the appellants (the Finnerans). On 7 February 1964 Tiara kicked Merna Finneran in the face inflicting injuries both severe and painful. On 7 September 1965 the Finnerans sued Wood in the Circuit Court for Prince George's County. On 4 August 1966 the case was removed to the Circuit Court for Calvert County. After the rather extensive discovery proceedings had come to an end the case was tried before Loveless, J., and a jury on 11 and 12 May 1967. At the conclusion of the Finnerans' case the court directed a verdict for Wood. In our consideration of the Finnerans' appeal we shall consider the evidence and all logical and reasonable inferences deducible therefrom in a light most favorable to them. Raff v. Acme Markets, Inc., 247 Md. 591, 233 A.2d 786 (1967).

Wood's three young daughters were daft about horses but, he told them, he would not consider buying a horse for them until a proper stable could be found. The Finnerans, who lived within a half mile of Wood, had a barn on their property. They allowed a neighbor to keep an old horse (Rock) in the barn and to let him graze in the adjoining fenced area which they called the corral. They turned aside, however, the oft-repeated requests of the Wood children to stable a horse there because they felt it would be detrimental to the operation of the miniature golf course they had built alongside of the corral and adjacent to their dwelling house.

In the fall of 1963 a neighbor gave Wood permission to use some of his land as a corral if Wood would provide the fence. Tiara was purchased before the fence was started and the Finnerans agreed that their barn and corral could be used until it was finished. A week or so after Tiara was installed on the Finnerans' property Wood bought Cashew, a 14.2 hand strawberry roan gelding. He was put into the corral along with Tiara and Rock. Finneran laid it down rather firmly that Wood would be fully responsible for the care and maintenance of Tiara and Cashew.

The Finnerans were away during most of December and January. It was about 8 o'clock on the morning of 7 February 1964 when Mrs. Finneran looked out of her kitchen window and saw Tiara 'trying to eat grass on the other side of the white (post and rail) fence (enclosing the corral). She kept pushing, pushing, pushing, and finally one end (of) one (of) the rails came loose. Then she pushed it further with her body and stepped over (the lower rail) into * * * (their) golf course.' Mrs. Finneran was concerned that Tiara might wander into an area of the golf course that had been freshly seeded or go out onto University Boulevard, a heavily traveled highway. She put on socks and ran to the basement to 'put on some old mud shoes.' By the time she came out of the house Tiara 'had run back to * * * (their) house area.' We shall let her describe what happened.

'Q. What did you do to her? A. As I approached her she was breathing heavily and seemed quite excited. I didn't feel like I should just grab the halter, so I takled to her a minute and I storked her nose and I pulled some grass that she ate from my hand and when she seemed to accept me a little bit, I took hold of her halter and was leading her back to the area of the fence where she had broken through.'

'Q. Would you describe what occurred from the moment you started leading the horse up along side of the fence until the accident occurred? A. Well, I had hold of her halter and I lead her from our-the area right next to our house and I was walking so that Tiara was between myself and the fence, because she is a very large horse. Like this-and just as we reached the area that was the broken part of the fence where I was going to lead her back in there, Cashew suddenly came right through that area, right towards Tiara and of course, the next few seconds as to what happened is difficult to describe. But Tiara, rather violently pulled at an angle, she was moving toward and also to the right. And naturally I dropped the halter because I couldn't hold her and I was off balance, I couldn't go side ways to get out of her way, she was moving in a left to right direction and the horse was coming. So the only thing I could do in an off balance fashion, I tried to spin around and get away from them, I remember turning loose and turned to my right and as I finished my turn, it was just an instant I saw Cashew here and Tiara kicked and that is the last I remember for a few seconds of few moments.'

Mrs. Finneran went on to say that she and Tiara 'were right at the break (in the fence) when Cashew came through that fence.' She made it quite clear that 'Tiara was kicking at Cashew' and not at her. Finneran saw the accident and his description of what happened is not materially different from his wife's. Wood testified that Finneran told him 'it wasn't the horse's fault * * * one horse kicked at the other and Mrs. Finneran happened to be in the way' and that 'it was one of those freak accidents that happen occasionally.'

We have made a careful search of the record for evidence touching on Tiara's kicking propensities and Wood's knowledge thereof. We shall discuss our findings. Finneran testified that when he told Wood his wife had been kicked Wood said:

'I know Tiara will kick * * * at other horses and did kick at Janie in the stables and it was a good lesson to her to be careful.' (Emphasis supplied.)

Wood testified his girls rode Tiara bareback 'with nothing but a halter,' and, that she never 'showed any disposition around humans that would constitute a hazard other than stepping on * * * (one's) foot.' He imagined 'the girls'...