Hansen v. Brogan

• Citation: 21 A.L.R.3d 595,400 P.2d 265,145 Mont. 224
• Decision Date: 19 March 1965
• Docket Number: No. 10812,10812
• Parties: , 21 A.L.R.3d 595 Roy V. HANSEN, Plaintiff and Respondent, v. W. E. BROGAN, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 265

400 P.2d 265

145 Mont. 224, 21 A.L.R.3d 595

Roy V. HANSEN, Plaintiff and Respondent, v. W. E. BROGAN, Defendant and Appellant.

No. 10812.

Supreme Court of Montana.

Submitted Feb. 15, 1965.

Decided March 19, 1965.

Lyman H. Bennett, Jr. (argued), Bozeman, for appellant.

Arnold Huppert, Jr. (argued), Jack Shanstrom, Livingston, for respondent.

CASTLES, Justice.

This is an appeal from a judgment for plaintiff entered on a jury verdict in the amount of $65,000. Motions for a judgment notwithstanding the verdict and for a new trial were made and denied. The verdict was directed insofar as liability was concerned, with the only problem left to the jury as to the amount of damages.

The cause arose from a goring of plaintiff by a buffalo. Plaintiff was a tourist from Kentucky, who with his family was enroute to Yellowstone Park. Plaintiff stopped at Corwin Hot Springs to view some buffalo, elk deer and animals displayed to attract tourists. Corwin Hot Springs is a public resort owned by defendant. Defendant had what is called a corral which contained the animals, running together.

According to plaintiff, he approached to about two feet from a woven wire fence, behind which was a large buffalo eating hay. The buffalo was about 10 or 15 feet from the fence. Plaintiff had one youngster by the hand, and as he turned to grasp another youngster by the hand, he was hit by the charging buffalo, through the fence, gored severely and tossed into the air.

As described by an eyewitness, 'then out of nowhere it [the buffalo] just turned it's head, there was no warning or nothing--and charged the fence. * * * The fence gave--I don't know, it just seemed to give a good two or three feet, I'd say, and he was standing there with his two kinds and all I know just lifted him right up in the air--* * *.'

The complaint alleged two counts. Count (1) is on the basis that a keeper of a wild animal is an insurer and strictly liable for all injuries caused by said animal. Count (2) was a general negligence theory. More specifically the pleadings were as follows:

The complaint alleged that the defendant was the owner of Corwin Hot Springs Resort; that there were public grounds to which the public was invited. This was admitted by the answer.

Paragraph II alleged that on August 10, 1961, the defendant maintained a corral in which he kept an American Bison, elk and other 'untamed, savage and ferocious animals' which were kept as a tourist attration. The answer admitted everything except as to the animals, only admitted that they were 'untamed'.

Paragraph III alleged that the animals were untamed, savage and ferocious, all of which was well-known to the defendant and that they were not confined or excluded from contact with people who stopped to view said animals, except by an insufficient, insecure and open fence. The answer admitted only that the animals kept by the defendant were untamed and were known by him to be untamed, and denied everything else.

Paragraph IV alleged that the corral was located near Highway 89, places provided for parking, and visitors allowed and invited to leave their autos and view the untamed, savage and ferocious animals and to pass in close proximity so that the animals could cause injury to such persons. The answer admitted the location of the corral, the invitation to park and view the animals, but denied the other matters.

Paragraph V of the complaint alleged that plaintiff parked his auto and left it to view the animals when, without any negligence on the part of the plaintiff, the buffalo lunged at plaintiff through said 'insecure and insufficient fence', and hooked and gored plaintiff causing injury. The answer admitted the parking and viewing but denied the other matters.

Paragraph VI alleged:

'The defendant by keeping said wild animals and more particularly said American Bison is an insurer and strictly liable for all injuries or damages caused by said animal to plaintiff.'

The answer denied this. Then in a separate paragraph the answer generally denied each allegation of count (1) not admitted.

By count (2) of the complaint, the plaintiff realleged Paragraphs I through V as set forth above, and then alleged that the injuries were proximately and directly caused by negligence, carelessness, recklessness and heedlessness of the defendant, who was well aware of and had full knowledge and notice of the ferocious and savage nature and ugly disposition of the untamed, savage and ferocious animals known as American Bison; and then repeated the negligence of the defendant in keeping them behind an open, insecure and insufficient fence and inviting the public and, particularly, the plaintiff, to come in close proximity to said fence where contact with said animals might well ensue and that it was heedless, reckless and negligent of the defendant to keep said animals in such an exposed place and that it was negligent of the defendant to keep them anywhere without having them securely fastened, restrained or enclosed.

In response to this, the defendant in his answer realleged the matters set forth hereinbefore as answer to count (1).

By a fifth defense, not limited to either the first or second count of the Complaint, the defendant alleged, 'That the injuries and damages sustained by the plaintiff were proximately and directly caused, or contributed, to, by negligence of the plaintiff.'

By a sixth defense, defendant pleaded, 'That the plaintiff voluntarily assumed the risk of the injury and damage sustained by the plaintiff * * *.'

With this state of the pleadings the cause went to trial. There was no pre-trial or any amendments or any apparent selection of the theory of plaintiff's case, except that the trial judge ruled out, on objections, all the defendant's proof concerning contributory negligence, assumption of risk and knowledge of the vicious nature of the buffalo.

Then, at the close of the case, the trial judge granted a directed verdict on liability. The trial judge specifically refused to instruct on any negligence theory, but apparently had the view that the keeper of a wild animal is an insurer. We have remarked before that the record does not reveal any election of remedies or any striking of defenses. The respondent's brief handles this simply by saying, 'It was clear that the plaintiff and the court abandoned the second count of the complaint and relied on the first count, or that of strict liability.'

Further, we have detailed the pleadings to a considerable extent to demonstrate that the defenses of contributory negligence and assumption of risk were specifically pleaded.

The appellant, defendant below, sets up twenty-two specifications of error. The specifications search rulings on evidentiary matters, the directed verdict, and the giving and refusing of instructions. In addition the specifications go to the refusal to grant a new trial and the refusal to direct a verdict for defendant.

We shall rule on but two issues, believing that in a new trial of this cause, certain alleged errors on rulings on evidentiary matters will not be repeated.

The two issues are:

(1) What is the duty owed by the keeper of the untamed animals?

(2) Was the defendant entitled to a directed verdict?

We believe it proper to comment further concerning the record before us. We are...