Groh v. Hasencamp, 81-41

• Decision Date: 08 December 1981
• Docket Number: No. 81-41,81-41
• Citation: 407 So.2d 949
• Parties: Karen GROH and The Farmers Reliance Insurance Company of New Jersey, a foreign corporation, Appellants, v. J. Robb HASENCAMP, as Guardian of the Property of Phillip E. Groh, III, aminor, Appellee.
• Court: Florida District Court of Appeals

Page 949

407 So.2d 949

Karen GROH and The Farmers Reliance Insurance Company of New Jersey, a foreign corporation, Appellants, v. J. Robb HASENCAMP, as Guardian of the Property of Phillip E. Groh, III, aminor, Appellee.

No. 81-41.

District Court of Appeal of Florida, Third District.

Dec. 8, 1981.

Rehearing Denied Jan. 15, 1982.

Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Joseph H. Lowe, Miami, for appellant.

Dixon, Dixon, Hurst, Nicklaus & Webb and H. Clay Roberts, Miami, for appellee.

Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.

HENDRY, Judge.

Appellants Karen Groh and Farmers Reliance Insurance Company appeal from a final judgment entered by the trial court pursuant to a jury verdict awarding Phillip Groh, III $32,000 in damages for personal injuries.

The incident giving rise to this lawsuit occurred when Phillip Groh, III (Phillip) was kicked by a horse which belonged to his half-sister Karen Groh. The horse, "Dandy", was stabled on five acres of land owned by Phillip's father, Phillip Groh, Jr. (Phil), and Phil's former wife Lorraine. Lorraine operated a nursery on part of the property, and Phil, as president of Utilities Service Corporation of America, operated a kennel on another part. Karen, daughter of Phil and Lorraine, received permission from both parents to keep horses ¹ on the property, although Phil claimed he later told Karen to remove the horses. The pasture area where the horses were allowed to roam was surrounded by a wire fence which could be electrified to give off a shock if touched. On June 25, 1976, Phillip, then two and a half years old, ran toward the enclosed pasture, crawled beneath the uncharged fence, and was kicked by Dandy. Phil and his current wife Linda filed suit ² against Karen and her insurer, Farmer's Reliance, on behalf of their injured son, alleging that Karen had maintained her horse on Phil's property against his wishes knowing that said horse had a dangerous and vicious nature. At trial, appellants' motion for directed verdict was denied and the jury returned special verdict interrogatories finding that the horse was on the property without permission and that Karen was negligent. The court entered final judgment for appellee and denied appellants' motion for judgment notwithstanding the verdict.

Appellants contend on this appeal that denial of their motions for directed verdict and judgment notwithstanding the verdict was erroneous because the evidence was insufficient as a matter of law to sustain an action for either trespass or negligence. We agree and reverse with directions to enter judgment for appellants.

We first address that portion of the verdict which found that Dandy was on the property without permission.

Pursuant to a dissolution of marriage decree, Phil and Lorraine each held an equal undivided half interest in the property subject to partition. Kollar v. Kollar, 155 Fla. 705, 21 So.2d 356 (1945); Wilburn v. Wilburn, 143 So.2d 518 (Fla.2d DCA 1962). An attempt was made at trial to show that Phil and Lorraine had, by oral agreement, partitioned the property, but the evidence did not clearly establish this fact, and formal partition of the property was not accomplished until after the accident. As co-owners, Phil and Lorraine were each entitled to equal use, benefit and possession of the whole. McCormick v. McCormick, 220 So.2d 654 (Fla. 4th DCA 1969). Lorraine thus had the authority individually to consent to stabling of the horse on the property and the record demonstrates that such consent was indeed given.

The evidence would also appear to support a finding of implied consent by Phil on the basis of custom, usage or conduct in that Dandy and Karen's other horse remained on the property with Phil's knowledge after his express consent was purportedly withdrawn. See Florida Publishing Company v. Fletcher, 340 So.2d 914 (Fla.1976), cert. denied, 431 U.S. 930, 97 S.Ct. 2634, 53 L.Ed.2d 245 (1977); Boston Manufacturers Mut. Ins. Co. v. Fornalski, 234 So.2d 386 (Fla. 4th DCA), cert. denied, 238 So.2d 426 (Fla.1970). Whether implied consent existed need not be resolved, however, because as we have pointed out, Dandy was on the property by express consent of Lorraine Groh. Inasmuch as consent is an absolute defense to an action for trespass, Florida Publishing Company v. Fletcher, supra, no issue of material fact existed, and this basis for liability should not have been submitted to the jury. ³

We also find merit in appellants' second contention, that the evidence was insufficient to sustain a negligence action. The basis for a finding of negligence in this case would have to be predicated either on Karen's ownership of the horse or the breach of a legal duty owed to Phillip. The well-settled rule of law with respect to owners or keepers of domestic animals is:

The owner or keeper of a domestic animal is bound to take notice of the general propensities of the class to which it belongs, and also of any particular propensities peculiar to the animal itself of which he has knowledge or is put on notice; and in so far as such propensities are of a nature likely to cause injury he must exercise reasonable care to guard against them and to prevent injuries which are reasonably to be anticipated from them.

Loftin v. McCrainie, 47 So.2d 298, 301 (Fla.1950). Accord, Rodriguez v. Newby, 131 Ga.App. 651, 206 S.E.2d 585 (Ct.App.1974); Williams v. Pohlman, 146 Ind.App. 523, 257 N.E.2d 329 (Ct.App.1970); Ewing v. Prince, 425 S.W.2d 732 (Ky.1968); Finneran v. Wood, 249 Md. 643, 241 A.2d 579 (1968) and cases cited; Buchholz v. Shapiro, 48 A.D.2d 694, 368 N.Y.S.2d 46 (App.Div.1975). See generally, Annot. 85 A.L.R.2d 1161, 1163 (1962).

Horses are domestic animals and presumed not to be vicious or dangerous, Moessinger v. Johnson, 292 So.2d 606 (Fla. 2d DCA 1974), so the above standard is applicable sub judice....