H. E. Butt Grocery Co. v. Perez, 14472

Citation408 S.W.2d 576
Decision Date19 October 1966
Docket NumberNo. 14472,14472
PartiesH. E. BUTT GROCERY COMPANY, Appellant, v. Elsa R. PEREZ et vir, Appellees. . San Antonio
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

Groce, Hebdon, Fahey & Smith, Ray A. Weed, San Antonio, for appellant.

Robert O'Conor, Jr., Nat B. King, Laredo, for appellees.

CADENA, Justice.

This is an appeal from an order of the District Court of Webb County overruling the plea of privilege of defendant, H. E. Butt Grocery Company, a corporation domiciled in Corpus Christic, Nueces County.

Plaintiff, Elsa R. Perez, joined by her husband, filed this suit to recover for physicial injuries suffered by her due to fright, emotional shock and physical exertion resulting from her ecounter, in the City of Laredo, Webb County, with an elephant which had escaped from the parking lot of a grocery store operated by defendant in that city.

The first count of the petition alleges that defendant permitted or caused to be kept, on a parking lot controlled by it, an elephant, and failed to keep the animal, or cause it to be kept, in such a manner as would absolutely prevent injury to others. It was further charged that the elephant, after escaping from the parking lot of defendant and roaming two miles through the streets of Laredo, entered the back yard of plaintiff's home, passing in close proximity to her, trampling a swing set where her children customarily played and, after crashing through a concrete wall, ran into an adjoining yard.

The second count of the petition, couched in terms of nuisance, alleged that the element was insecurely kept on defendant's premises .

The petition recited that plaintiff's injuries resulted from the failure of defendant to keep the elephant securely on its premises, and from defendant's failure to capture the beast, or cause it to be captured, within a reasonable time after its escape.

Plaintiff seeks to maintain venue in Webb County under Subd. 23 of Article 1995, Vernon's Ann.Civ.St., which provides, insofar as here relevant, that suit against a corporation may be maintained in the county in which the cause of action arose.

Defendant contends that plaintiff failed to show a cause of action arising in Webb County for each of the following reasons: (1) in the absence of allegations and proof of negligence on the part of defendant, plaintiffs has no cause of action, since the rule imposing 'strict liability' on the keeper of a dangerous animal is not the law in Texas; (2) the evidence will not support a finding that defendant was the 'keeper' of the elephant; and (3) the evidence is insufficient to show that any act of defendant was the proximate cause of plaintiff's injuries.

1. Liability of Keeper of Dangerous Animals.

We do not deem it necessary to decide whether the rule of strict liability applies to the keeper of a dangerous animal in Texas. 1 While plaintiff's petition in this case does not use the word 'negligence' it does charge that defendant failed to keep the elephant securely, or to cause it to be so kept. It is further alleged that, after the animal had escaped, defendant failed to recapture it, or to cause it to be recaptured, within a reasonable time.

If an animal which causes injury is one which long experience has shown to be, because of its species, naturally dangerous and ferocious, its keeper is conclusively presumed to have notice of its propensity to do harm. Copley v. Wills, Tex.Civ.App., 152 S.W. 830, no writ; Prosser, Torts (3rd ed., 1964), § 75, p. 514. In Western countries, and even in India, an elephant is considered to be an animal which is dangerous by nature, even when 'tamed,' so that its keeper is conclusively presumed to have notice of its dangerous propensities. Newman v. Cleveland Museum of Natural History, 143 Ohio St. 369, 55 N.E.2d 575; Scribner v. Kelley, 38 Barb. 14 (N.Y.); Behrems v. Bertram Mills Circus, Ltd., (1957) 2 Q.B. 1; Vedapurrati v. Koppan Mair, I.L.R., 35 Mad. 708.

It cannot be asserted that the keeper of an animal, known by him to be dangerous, is under no duty to keep it securely, or that, in case of its escape, the keeper is under no duty to effect its recapture. The petition, then, clearly alleges a breach of duties owed by defendant to those who might reasonably be foreseen to be in the zone of danger should the elephant escape. Plaintiff's petition sufficiently charges negligence on the part of defendant.

In any event, where a naturally dangerous animal escapes and does injury, allegations of the animal's nature and of its escape are sufficient to establish a prima facie case of negligence. This was the precise holding in May v. Burdette, 9 Q.B. 101, 115 Eng.Rep. 1213, the case which is generally referred to as the origin of the doctrine of strict liability. In Congress & Empire Spring Co. v. Edgar, 99 U.S. 645, 25 L.Ed. 487, in discussing the liability of the keeper of animals known to be dangerous, said: 'Compensation in such a case may be claimed of the owner or keeper for the injury; and it is an established rule of pleading that it is not necessary to aver negligence in the owner or keeper, as the burden is upon the defendant to disprove the implied imputation * * *.' 99 U.S. at p. 651, 25 L.Ed. 487.

The evidence in this case showed that the elephant escaped from premises under the control of defendant and that, although one of defendant's employees followed it in an automobile and kept it in sight, the animal eventually found its way into plaintiff's yard, two miles from defendant's store. This evidence was sufficient to warrant an inference of negligence. In Zuniga v. Storey, Tex.Civ.App., 239 S.W.2d 125, wr. ref., n.r.e., a bull escaped from a rodeo and, after running loose upon the streets of San Antonio, entered a yard in a residential area and gored plaintiff. The testimony concerning the manner in which the bull escaped was in conflict. In holding that the trial court erred in instructing a verdict in favor of defendant, this Court, speaking through Justice Norvell, who now graces the bench of our Supreme Court, said: 'The issue here is whether or not the evidence was sufficient to have supported a jury finding that appellees failed to discharge their duty to protect the public from an animal they were using for show purposes. Whichever version of the testimony be accepted, it appears that the bull made his escape while under the immediate control of appellees' servants. Said servants failed to capture or restrain the animal until after he had run wild through the streets of San Antonio and inflicted serious bodily injury upon Mrs. Zuniga, who was two miles away from the place where the bull made his escape. From the evidence a jury could have properly concluded that appellees and their servants were negligent.' 239 S.W.2d at pp. 126, 127, emphasis added.

We conclude, without relying on the doctrine of strict liability, that the pleadings and the evidence were sufficient to support a finding of negligence on the part of defendant.

2. Defendant as 'Keeper' of the Elephant.

The elephant in question was part of a carnival which began operating on defendant's parking lot on Jan. 2, 1964, pursuant to arrangements made between the owner of the carnival and defendant at defendant's home office in Nueces County. Defendant's representatives in Laredo were ignorant of the details of the agreement between the carnival owner and defendant, and the record contains no evidence concerning the nature of such agreement. No representative of defendant took any part in the operation of the carnival. Defendant paid no money to the carnival owner, nor did defendant receive any part of the money realized from the carnival's operation. Defendant, at its store, gave away 'discount' tickets which were honored by the carnival. At night, the elephant was kept in a truck. During the day it was chained to a stake so that children could feed it popcorn and peanuts.

In answer to plaintiff's request for admission, defendant stated that the purpose of having the carnival on the parking lot was to promote the business of defendant's grocery store in Laredo.

The evidence is sufficient to show that defendant did not merely tolerate the elephant's presence on premises...

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5 cases
  • Marshall v. Ranne, B--4024
    • United States
    • Supreme Court of Texas
    • May 1, 1974
    ...in Texas, 4 Baylor L.Rev. 183 (1952). Among the cases which have been pleaded and tried as negligence cases are: H. E. Butt Grocery Company v. Perez, 408 S.W.2d 576 (Tex.Civ.App.1966, no writ); Zuniga v. Storey, 239 S.W.2d 125 (Tex.Civ.App.1951, writ ref'd n.r.e.); Dakan v. Humphreys, 190 S......
  • Clark v. Brings
    • United States
    • Supreme Court of Minnesota (US)
    • June 27, 1969
    ...Cal.App.2d 786, 205 P.2d 671; buffalo, Hansen v. Brogan, 145 Mont. 224, 400 P.2d 265, 21 A.L.R.3d 595; elephants, H. E. Butt Grocery Co. v. Perez (Tex.Civ.App.) 408 S.W.2d 576; and, proverbially, tigers, Rex v. Huggins, Supra; Nichols v. Marsland, L.R. 10 Ex. 255. All of these are animals o......
  • Schmeck v. City of Shawnee
    • United States
    • United States State Supreme Court of Kansas
    • July 16, 1982
    ...of another and is himself or herself then in a place of danger and is threatened with physical injury. See H. E. Butt Grocery Company v. Perez, 408 S.W.2d 576 (Tex.Civ.App.1966), and Cosgrove v. Beymer, 244 F.Supp. 824 (D.Del.1965). Obviously, such a test would not permit this plaintiff to ......
  • Overstreet v. Gibson Product Co., Inc., of Del Rio, 15697
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • October 26, 1977
    ...such as the case where the owner or occupant of land keeps or harbors a dangerous wild animal on his premises. H. E. Butt Grocery Co. v. Perez, 408 S.W.2d 576, 578, n.1 (Tex.Civ.App. San Antonio 1966, no writ). There is no evidence in this case that defendant kept or harbored the It is clea......
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