Heald v. Cox, 25484

CourtCourt of Appeal of Missouri (US)
Citation480 S.W.2d 107
Docket NumberNo. 25484,25484
PartiesHallard HEALD, Plaintiff-Respondent, v. Ernest E. COX, Defendant-Appellant.
Decision Date24 April 1972

Lee E. Wells, McKenzie, Williams, Merrick, Beamer & Wells, Kansas City, for defendant-appellant.

Don Pierce, Downs & Pierce, St. Joseph, for plaintiff-respondent.

PER CURIAM.

This is a suit for personal injuries caused by a fall from a horse. The trial resulted in a jury verdict for plaintiff in the sum of $1,750.00. Plaintiff filed a motion for new trial limited to the issue of damages only, and in connection therewith, alleged that the jury's award was 'totally, wholly and grossly inadequate'. Defendant, on the other hand, filed an after trial motion for judgment in accordance with his motions for directed verdict at the close of the plaintiff's evidence and at the close of all the evidence.

The trial court overruled the defendant's motion and sustained plaintiff's motion for new trial on the issue of damages only. Defendant appeals, assigning two grounds of error: (1) that the trial court should have sustained his after trial motion for judgment; or in the alternative, (2) that the trial court erred in granting a new trial limited to the issue of damages only.

I

With respect to its contention that the trial court should have directed a verdict for him, defendant makes a two-pronged attack upon the submissibility of plaintiff's case. In the first place, defendant argues that he had no legal duty to plaintiff, who was a social guest and therefore, a bare licensee. For his second argument, defendant contends that under the evidence there was no showing of negligence on the part of defendant, and further, that plaintiff should be found guilty of contributory negligence as a matter of law.

A. Addressing ourselves first to the question as to the matter of the defendant's legal duty, if any, it is true that the Missouri law recognizes a distinction between invitees, licensees and trespassers. However, as pointed out by Judge Shangler of this Court, in the recent case of Cunningham v. Hayes, Mo.App., 463 S.W.2d 555, l.c. 559, these distinctions are vestigial remnants of the historical past which bear little rational relationship to the complex, personal and economic relationships of our modern age. The classifications in question remain important primarily for their recognition of the likelihood of the land possessor anticipating the presence of the visitor. As stated in the Cunningham opinion:

'And once presence becomes known, whether that of an invitee, licensee, or trespasser, the significance of status largely disappears, and a uniform duty--that of reasonable care--is owed to each as to activities conducted on the premises.'

In any event, a land owner or possessor is liable to a licensee for 'active' negligence as opposed to mere 'passive' negligence. For purposes of this legal distinction, active negligence means negligence occurring in connection with activities conducted on the premises; whereas, passive negligence means that which causes danger by reason of the physical condition of the premises. Cunningham v. Hayes, supra; Cupp v. Montgomery, Mo.App., 408 S.W.2d 353, l.c. 356.

Plaintiff's pleadings and proof were directed to a showing of failure by the defendant to warn of a dangerous proclivity of a riding horse which defendant was invited or permitted to ride. This type of negligence falls within the category of 'active' rather than 'passive' negligence. This precise point was ruled by the Virginia Supreme Court of Appeals in Bradshaw v. Minter, 206 Va. 450, 143 S.E.2d, 827, l.c. 829. That case, like this, was an action by a social guest to recover for injuries when thrown from a horse made available to her by the defendant-host. As here, so also in the Bradshaw case, the defendant contended that there could be no recovery because the plaintiff was a mere licensee. The Virginia Supreme Court of Appeals rejected that argument as follows:

'In Virginia we have adhered to the general rule that no duty is imposed upon the owner or occupant to keep his premises in a safe and suitable condition for the use of a licensee, and that so far as the condition of the premises is concerned the owner or occupant is only liable for any willful or wanton injury that may be done to him. 13 Mich.Jur., Negligence, § 17, p. 523, and cases there collected. See also, Prosser, Law of Torts, 2d Ed., § 77, p. 445; 38 Am.Jur., Negligence § 105, p. 767; 65 C.J.S. Negligence § 35a, p. 491.

'However, the textwriters and the later cases hold that a different rule applies where a guest is injured by reason of the activities of the host which may constitute active of affirmative negligence as distinguished from passive negligence, that is, the condition of the premises. Where the activities of the host are involved, the test should be one of reasonable care under the circumstances.'

On the basis of the foregoing authorities, we hold that plaintiff's status as a licensee does not bar his recovery here.

B. We come now to defendant's second contention in support of his motion for directed verdict--namely, the contention that the evidence showed as a matter of law that defendant was not negligent and that plaintiff was contributorily negligent. A consideration of this contention requires a review of the evidence.

Defendant bought the quarter horse in question, named Little Gal, in March or April, 1968. The third time the defendant rode Little Gal after the purchase, the horse 'bucked like nobody's business'. However, defendant managed to get the horse under control on that occasion and was not thrown. Afterwards, defendant rode Little Gal on various occasions and noticed that she 'tensed up' but she never again bucked because defendant 'didn't give her a chance to.'

Between the Spring of 1968 when the horse was acquired, and October 6, 1968, when plaintiff's accident occurred, Little Gal was also ridden by defendant's wife, his son Robert, and his fourteen year old grandson Leon. These family members were all more experienced riders than plaintiff, but defendant, nevertheless, warned them 'to watch her and not let her get her head or she would buck'. Robert Cox testified that although Little Gal gave him no particular problem, she was 'a spirited horse'.

The day of the accident was a Sunday, when various members of the family gathered at the defendant's home for dinner and to watch the World Series baseball game. The game was called because of rain, and the men went outdoors where they saddled up riding horses. After a little lapse of time, plaintiff followed them outdoors where he saw his young son on a pony and defendant and Lyle Smith standing beside Little Gal. There was some confusion in the testimony as to just what happened at this point. Plaintiff testified that not only his son, but also the defendant and others urged him to ride Little Gal. Plaintiff at first declined, but subsequently he did consent and did mount Little Gal. Defendant, in his testimony, denies being present at that time and further testified that he did not know that plaintiff was riding Little Gal until just a few minutes before the accident occurred. There is no dispute concerning the fact that no one gave plaintiff any warning about any tendency of Little Gal to buck, and although plaintiff was an inexperienced rider, he made no inquiry himself with respect to the safety of the horse, nor did he ask for any instructions concerning how to ride.

Plaintiff's son on the pony, followed by plaintiff on Little Gal, rode out of the barnyard and walked down a nearby lane some fifty to one hundred feet, during which time plaintiff had no trouble controlling the horse. Then they turned around and headed back to the barnyard. At this point, plaintiff noticed a tendency of the horse to pull at the reins by pulling its head down. The pony and horse started moving faster. Plaintiff jerked his horse's head out, the horse began bucking, and plaintiff was thrown off and fell. As the result, he broke his wrist and suffered other injuries. Defendant then came up and grabbed the horse.

The question now to be decided is whether, under the facts stated, defendant had a duty to warn. The applicable rule of law is stated in 4 Am.Jur.2d, Animals, § 86, p. 332, as follows:

'In order to impose liability upon the owner of an animal which is not naturally dangerous to mankind on the basis that the owner had knowledge of the dangerous propensities of the animal, it is sufficient if the owner has seen or heard enough to convince a man of ordinary prudence of the animal's inclination to commit an injury of the class complained of. The question in each case is whether the notice was sufficient to put the owner on his guard and to require him, as an ordinarily prudent man, to anticipate the injury which has actually occurred.'

In support of this general rule see: Humes v. Salerno, Mo.Sup., 351 S.W.2d 749; Cf. Robidoux v. Busch, Mo.App., 400 S.W.2d 631.

The evidence summarized above was sufficient upon which the jury could reasonably find that defendant knew of a dangerous proclivity by the horse Little Gal to buck; that it required special handling to control that tendency; that plaintiff to defendant...

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