Fox v. Koehnig

• Decision Date: 21 June 1926
• Parties: FOX ET AL. v. KOEHNIG.
• Court: Wisconsin Supreme Court

190 Wis. 528

209 N.W. 708

FOX ET AL.

v.KOEHNIG.

Supreme Court of Wisconsin.

June 21, 1926.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Two actions, one by Jacob P. Fox individually, the other by Jacob P. Fox as guardian ad litem for Adeline Fox, both against William Koehnig. Judgments for plaintiffs, and defendant appeals. Reversed and remanded, with instructions.

Action to recover damages for injuries sustained by reason of the collision of an automobile with defendant's horse on a public highway. On the evening of May 2, 1924, about 9 o'clock p. m., an automobile owned by the plaintiff Jacob P. Fox was being driven along a public highway in Fond du Lac county by his son, Raymond Fox. His daughters Adeline and Viola were also occupants of the automobile. While being so driven, the automobile collided with defendant's horse, which was loose and unattended on the highway, causing damage to the car and injuries to the plaintiff Adeline. The plaintiff Jacob P. Fox brought action to recover for the damages to the car, and the plaintiff Adeline Fox brought action to recover damages resulting from her personal injuries. The two actions were combined for the purpose of trial, were briefed and argued together in this court, and will be disposed of in a single opinion.

It appears that the defendant's horse, a colt about 3 years old, had been grazing on the highway during the day of May 2d; that in the evening, after supper, defendant secured the colt and put it in his barnyard, which was inclosed by a fence. After the defendant had retired for the night, the colt escaped from the barnyard, and wandered upon the highway. Just before the accident, plaintiff's automobile, driven by his son, met two or three cars, causing a cloud of dust to arise which greatly obscured the vision of the driver and occupants of the car. So much of the evidence as may be necessary for the disposition of the case will be detailed in the opinion.

The jury found that the defendant did not know that the horse was on the highway at the time of the collision, but that its presence on the highway was due to a want of ordinary care on the part of the defendant, which want of ordinary care was the proximate cause of the collision, and that there was no want of ordinary care on the part of the driver or Adeline Fox. Upon this verdict judgments were rendered in favor of the plaintiffs, from which judgments the defendant appeals.

Reilly & O'Brien, of Fond du Lac, for appellant.

T. L. Doyle, of Fond du Lac, for respondents.

OWEN, J. (after stating the facts as above).

These actions were separate and distinct actions. They were combined for the purposes of trial. A judgment was entered in each action. The notice of appeal to this court from said judgments was a single notice. It was entitled in both actions, and gave notice that the defendant appealed “from the judgments rendered by the above-named court, herein entered on the 2d day of December, 1924, in favor of the plaintiffs and against the defendant, for the sum of $529.59 damages and costs, and $2,044.55 damages and costs, and from the whole thereof.” The plaintiffs have made separate motions to dismiss the appeal.

[1][2] The notice of appeal is irregular. There should have been two notices served, entitled in each action, giving notice of appeal from the judgment in the action so entitled. However, it does not follow that the appeal should be dismissed. Section 269.51 Stats., provides that:

“Whenever an appeal is attempted to be taken * * * and return is duly made * * * the respondent shall be deemed to have waived all objections to the regularity or sufficiency of the appeal * * * unless he shall make such objection by motion to dismiss such appeal before taking or participating in the taking of any other proceedings in said appellate court.”

This case appeared as No. 4 on the calendar for the August term of the year 1925 of this court. There was filed in this court on September 21, 1925, a stipulation continuing the case over the term, signed by the attorneys for the respective parties, and pursuant to such stipulation the case was continued over the term. The signing of this stipulation resulted in continuing the case over the term, and constituted a waiver of the defects in the appeal proceedings under the provisions of section 269.51, Stats. The motions to dismiss the appeal are denied without costs.

The principal contention made by appellant is that the negligence of the defendant in failing to maintain a sufficient fence to confine his horse to the barnyard and thus prevent his straying upon the highway is not the proximate cause of the damage. It is contended that the proximate cause of the damage is the negligence of the driver of the automobile in driving through a cloud of dust at such a rate of speed that he was unable to stop in time to avoid the collision with the horse. No doubt the question whether the negligence of the defendant was the proximate cause of the damage is a vital question in the case, and we think this is true, entirely separate and apart from the question whether the conduct of the driver of the automobile was the proximate cause of the damage.

[3] It would seem that an orderly treatment of the case should be premised upon a consideration of the duties resting upon the owners of live stock and other domestic animals with respect to their keeping or confining them within or upon their premises, and the liabilities attaching to such owners when their animals stray therefrom. It is well settled that at common law it is the duty of the owners of such animals to fence them in, and that no duty rests upon their neighbors to fence them out, and the owner of animals is liable for their trespasses upon the lands of another, whether the lands trespassed upon are inclosed or not. Thompson on Negligence, § 938; 1 C. J. p. 125. While in some of the states, particularly in the grazing states, this rule has been modified by statute imposing the duty upon the owners of lands to protect their lands from the trespasses of live stock by maintaining fences, the common-law rule was early adopted in this state and still obtains, except as modified by our line fence statute. Stone v. Donaldson, 1 Pin. 393;Harrison v. Brown, 5 Wis. 27;Walls v. Cunningham, 123 Wis. 346, 101 N. W. 696.

[4][5] The liability of the owner for damage resulting from trespasses committed by his live stock upon the lands of his neighbor is absolute, and depends in no degree upon the question of his negligence. But the owner is not liable for every conceivable damage which his trespassing animals may commit. It is well settled that he must take notice of the natural propensity of cattle. He is liable only for the damages resulting from the natural propensities of his animals, and from such peculiar propensities of individual animals as have come to his attention. It is a well-known propensity of live stock, such as horses, cattle, sheep, and other domestic animals, to graze upon, trample down, and destroy grass and other growing crops. For such damage the liability of the owner is absolute. If he have a vicious horse that is accustomed to kick, or a bull that is given to assault upon others, and he has notice of these vicious tendencies, he must be held to anticipate that damages may result from these vicious tendencies if they escape from his own inclosure. But, as said in Cooley on Torts, at page 403:

“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 every horse will roam into 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 trespasses on 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 passerby 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 not be negligence in the keeper to fail to guard against.”

While the liability of the owner of domestic animals for their trespasses upon the lands of his neighbors is well settled, the liability of the owner for damages committed by his animals while straying upon the highway is not so well settled. In many states it is held that the owner of a horse running at large upon the highway is liable for damage committed by such horse, whether vicious or not, or known by the owner to be vicious. This seems to be true in New York, Pennsylvania, Massachusetts, Maine, and perhaps other states. Many cases to this effect are cited upon the brief of counsel for respondents, such as Flesch v. Schlue, 194 Iowa, 1200, 191 N. W. 63;Healey v. Ballantine, 66 N. J. Law, 339, 49 A. 511;Lyman v. Dale, 156 Mo. App. 427, 136 S. W. 760;Hardiman v. Wholley, 172 Mass. 411, 52 N. E. 518, 70 Am. St. Rep. 292;Dickson v. McCoy, 39 N. Y. 400. To these cases may be added Goodman v. Gay, 15 Pa. 188, 53 Am. Dec. 589;Decker v. Gammon, 44 Me. 322, 69 Am. Dec. 99;Baldwin v. Ensign, 49 Conn. 113, 44 Am. Rep. 205;Manthey v. Rauenbuehler, 71 App. Div. 173, 75 N. Y. S. 714. It is believed, however, that the decisions in these cases rest upon the ground that it is unlawful for horses and other animals to stray unattended upon the highway, and the doctrine that the owner is liable for all damage committed by such animals when in a place where they had no right to be is applied. In some of the cases it appears that either state s...