Groce Provision Co. v. Dortch
| Decision Date | 07 April 1961 |
| Citation | 350 S.W.2d 409,49 Tenn.App. 57 |
| Parties | GROCE PROVISION COMPANY v. Geneva Annis DORTCH et al. 49 Tenn.App. 57, 350 S.W.2d 409 |
| Court | Tennessee Court of Appeals |
[49 TENNAPP 59] Lamb & McCown, Fayetteville, Claude Callicott, Nashville, for appellant.
Simms & Simms, Fayetteville, for appellee.
Defendant Groce Provision Company, engaged in the packing house business in Fayetteville, Tennessee, bought a bull to slaughter. After the bull was delivered to its place of business it escaped and in the course of its efforts to elude its pursuers it tossed plaintiff, Mrs. Geneva Annis Dortch, inflicting serious, painful bodily injuries on her, as a result of which her husband, plaintiff H. E. Dortch, suffered the loss of her services as wife and incurred hospital expenses, doctors bills, and medical bills. By separate suits, which were consolidated for trial, plaintiffs sued for damages for these injuries and expenses. Mrs. Dortch recovered judgment for $7,500 and Mr. Dortch recovered judgment for $5,000. Defendant has appealed in error to this Court and assigned errors which present the sole question whether the trial court should have directed verdicts in its favor for failure of plaintiffs to prove negligence as averred.
We have concluded the assignments of error are not good for reasons which we shall state.
Mrs. Dortch sued on a five-count declaration alleging common law negligence in the first count and violation of various ordinances and statutes in the other four counts. The trial judge sustained motions for directed verdicts as to the last four counts, so the case was finally tried by the jury on the first count. The substance of the allegations in the first count is that, in spite of the fact the business place of defendant was located in a populated area of the Town of Fayetteville, and defendant [49 TENNAPP 60] knew or should have known that an animal escaping therefrom would be likely to cause injury, and on this account owed the public and the plaintiff the duty to maintain its premises in such a manner that an animal could not escape, through defendant's negligence a bull it owned was permitted to escape and, before it was captured or killed, it ran over and severely injured plaintiff, Mrs. Dortch. That all of this was the direct proximate result of the carelessness and negligence of defendant. To this declaration defendant pleaded the general issue. Acting under instructions from the court to which no exception has been taken by defendant, the jury found defendant guilty of negligence and assessed damages as aforesaid.
The motion for directed verdict was predicated upon three grounds: (1) That there was no evidence of negligence. (2) If any negligence was shwon, it was not sued on in the declaration. (3) Sections 44-1401 et seq., T.C.A., were complied with, so defendant was not guilty of negligence.
Considering first whether the evidence was sufficient to take the case to the jury, it is proper for us to observe at the outset that we are bound by the rule safeguarding the constitutional right of trial by jury, which requires us to take the evidence for plaintiffs as true, allow all reasonable inferences therefrom in their favor, discard all countervailing evidence, and if there is any material evidence sustaining their case, overrule the assignment of error insofar as this part of it is concerned. Poole v. First Nat. Bank of Smyrna, 29 Tenn.App. 327, 196 S.W.2d 563.
The evidence in favor of plaintiffs tends to prove the following: That defendant Groce Provision Company,[49 TENNAPP 61] a partnership operating a slaughter house and meat packing business in a populated area within the city limits of the Town of Fayetteville, bought a 1,195 pound bull to slaughter. This bull and a smaller bull were placed in a shed, which was a part of the business place building. This enclosure was called 'the scales pen', and was contained inside of a larger shed. At this time the larger bull was noticed to be 'skittish' and 'nervous', and this information was relayed to an employee of defendant. In some manner the bulls shook loose the fastening on one of the gates to the scales pen and walked out into the main shed. They escaped from this shed, which was constructed of boards nailed horizontally to posts, by bearing down upon one of the top boards and thereby pulling it down from the post to which it was nailed. They then went over the lower boards into another part of the building. After being chased around inside of this building, during which the smaller bull was captured, the large bull escaped out of the building through a door opening onto a loading ramp which had been open during all the time the bull was running from room to room in the building. Defendant Bobby Groce, one of the partners in the packing business, stated that if this door had been closed this would have confined the bull in the building. On one occasion he was between the bull and this door. After the bull escaped through the open door, it ran into an alley where Bobby Groce shot it with a .22 rifle which seemed to have no effect on the animal except to make it angry. The bull escaped from this alley, going past its pursuers, and entered on the premises of the local Gulf Distributing Agency, which was fenced with a #9 wire fence attached to posts which were set in concrete and which from the proof we find [49 TENNAPP 62] would be such a fence as would satisfy Sec. 44-1701 et seq., T.C.A. After the bull ran into this fenced area the gates were closed upon him. Here, in spite of the fact the bull was obviously angry, and the previous shots fired at him by the .22 had not seemed to make any impression on him whatsoever except to make him angrier, defendant Bobby Groce shot the bull again with his .22 rifle. Upon this, the bull lunged at the top of the wire fence and rode it down and escaped. When the bull went on these premises, the owner of the premises went to get a larger caliber weapon with which to shoot the bull but defendant Bobby Groce did not wait for his return. After the bull escaped over the fence, it ran on up North Lincoln Avenue where an employee of defendant company ran into it twice with an automobile knocking it down once, but failed to stop it in its flight. From this point, the bull ran on until it saw Mrs. Dortch, whom it tossed with its head, throwing her some four feet into the air onto the concrete pavement or street, rendering her unconscious, cutting a deep gash in her forehead, and inflicting a compound fracture on the bones of her right arm below the elbow. The bull was finally killed with a high-powered rifle. After it was slaughtered, and while being dressed out, it was discovered that two of the .22 shots had taken effect in the animal's skull. It was also developed in the proof that defendant owned no ropes or lassoes or chains or other equipment to restrain or capture or hold an escaping animal.
Plaintiffs contend this proof shows the bull was the...
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...to do what a reasonable and prudent person would ordinarily do under the same or similar circumstances. Groce Provision Co. v. Dortch, 49 Tenn.App. 57, 350 S.W.2d 409 (1961) In Monday v. Millsaps, 37 Tenn.App. 371, 264 S.W.2d 6 (1953) this Court held: '(8) Whenever one person is by circumst......
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