Humes v. Salerno

• Decision Date: 13 November 1961
• Docket Number: No. 2,No. 48510,48510,2
• Citation: 351 S.W.2d 749
• Parties: Wallace W. HUMES, Respondent, v. Dr. Carmen N. SALERNO, Appellant
• Court: Missouri Supreme Court

Page 749

351 S.W.2d 749

Wallace W. HUMES, Respondent, v. Dr. Carmen N. SALERNO, Appellant.

No. 48510.

Supreme Court of Missouri, Division No. 2.

Nov. 13, 1961.

Motion for Rehearing or to Transfer to Court en Banc Denied

Dec. 11, 1961.

Carter, Fitzsimmons & Brinker, Lee M. Carter, Clayton, for appellant.

Hal B. Coleman, Coleman, Ross & Cekovsky, Clayton, William L. Mason, Jr., St. Louis, for respondent.

BARRETT, Commissioner.

The plaintiff, 'Wally' Humes, is a professional free-lance jockey and the defendant, Dr. Carmen N. Salerno, is an owner of race horses. In March 1959, Dr. Salerno employed Wally on a part-time, after-hours basis to 'pony' three of his race horses at his farm on Charbonnier Road, preparatory to the races at Cahokia. In the language of the race track to 'pony' a horse means that a jockey rides a saddled 'stock' horse and leads or controls the haltered race horse with a halter shank, a single rein attached to a chain, the chain in the horse's mouth, across its nose or under its chin. The jockey controls the race horse by holding the rein near the chain with the horse's head close to the jockey's hip and always back of the pony horse's head. In this manner the jockey walks the race horse around the track, then jogs it around and finally gallops the horse five or six times around the track.

On March 23 Wally appeared at Dr. Salerno's farm and 'poneyed' the horse Lisa's Lad, then the groom handed him the stallion, Sal's Son, with the halter shank chain through his mouth. Wally was not familiar with this horse, had no prior experience with him and was given no instruction or warning other than to gallop him around the track five or six times. He walked Sal's Son around the track once, jogged him around once and then successfully galloped him five and a half times around the track. At that point in the ponying, as they came into the final turn, Sal's Son suddenly 'went into a rage' and 'nailed' Wally's right leg between his teeth, the horses went off the track, the stock horse was knocked down and Sal's Son hung onto Wally's leg, stumbled and 'still had me in his mouth, on the ground, and growling like a lion.' To recover damages for his resulting injuries Wally instituted this suit on the theory that Dr. Salerno knowingly and without warning furnished him with a vicious and dangerous horse. Upon the trial of the cause a jury found the issues for Wally and fixed his damages at $32,000 and Dr. Salerno has appealed. The doctor's first and principal claim is that the trial court should have directed a verdict in his favor because there was insufficient evidence to support a finding that his racing stallion had an abnormal propensity to injure persons and that he had not manifested such propensity 'prior to the accident as to impute knowledge of it to the defendant.'

Race horses are spirited and tempermental, even unpredictable, stallions more so than mares and geldings, but, Wally said, 'It is just temperament like people.' He also said that on this occasion the conduct of Sal's Son was unusual, in his seventeen years as a jockey he had not had a comparable experience. But in addition to the particular incident and Wally's description of it another jockey, Edgar Wallace, had exercised Sal's Son in 1956 and he said, 'You had to watch him and have a figure 8 on him. He was real rough to gallop and he would try to bite you, for another thing. * * * He has tried to bite me while I was on his back and when I was off of him and holding him. * * * Sometimes he turns around and nips at your foot but he couldn't bite me because he had a figure 8 on him; he would have been able to if he hadn't, that is the reason we used that.' Furthermore, Edgar said, 'he would try to paw you with his foot, either one,' and when galloping he had seen him try to 'savage' (a horse-racing term meaning to bite or attack) another horse. It is not necessary at this point to search out other evidence, in these circumstances, as the jury could and did find them, Sal's Son was a vicious horse (Merritt v. Matchett, 135 Mo.App. 176, 115 S.W. 1066; Maxwell v. Fraze, Mo.App., 344 S.W.2d 262), and the only question is whether there is also evidence from which the jury could reasonably draw the inference that Dr. Salerno had actual or constructive knowledge of the fact. State ex rel. Kroger Co. v. Craig, Mo. App., 329 S.W.2d 804, 809; Clark v. Missouri, K. & T. Ry. Co., 179 Mo. 66, 77 S.W. 882; Alexander v. Crochett, 233 Mo.App. 674, 124 S.W.2d 534. In addition to these cases, other cases and the general rules are set forth and collected in Clinkenbeard v. Reinert, 284 Mo. 569, 225 S.W. 667, 13 A.L.R. 485; Rolleg v. Lofton, Mo.App., 230 S.W. 330; 3 C.J.S. Animals Sec. 148, p. 1248; 2 Am.Jur. Animals, Sec. 48, p. 728 and the annotations 15 A.L.R.2d 1313, 17 A.L.R.2d 459.

The jockey, Wallace, on cross-examination said that he had complained of Sal's Son's conduct, and, of the horse's trainer, Clark, he said, 'He knew the horse was mean.' Sal's Son had been under the care of a veterinary in December 1958 for a bowed tendon and a 'bad case of thrush' and then or later had been placed on the 'vet's list' which meant that he could not run on certain tracks. In any event, when Wally was admitted to the osteopathic hospital Dr. Salerno in his first conversation said, 'He told me, 'Wally this should never have happened. If I had been out there, I would have never have let you take the horse out there. You should have had a figure 8 or a nose band on.'' The doctor said the same thing to Wally's wife and brother and in another conversation he told them that just the day before Wally was injured his nephew was ponying Sal's Son and the horse tried to bite him and he said, 'I really worked that horse over.' The nephew's and Dr. Salerno's interpretation of this episode was that the nephew was ponying Sal's Son and 'the shank slipped out of his hand and the horse just pulled away from him and he stood there so I hollered at Bobby, I said, 'I will be right over. Stay right there. Just try to bring him over there. Stay over there so he don't run off,'' and then the doctor said, 'I walked on up and grabbed the horse by the shank and I said a few things which I don't want to repeat and I yanked on the shank a few times and I turned on him this way (indicating) and I turned him around this way so he could get to walking and I handed him to Bob' and he went on. As to his first conversation with Wally, he said that he asked Wally what happened, Wally answered, "The horse bit me." And the doctor said, "It should never have happened, if I had been there it might not have happened.' I said, 'Couldn't you have used the figure 8?"

Sal's Son was born in 1953, raced as a two-year-old, and Dr. Salerno raised, trained and raced him throughout his career and so he knew the horse as no one else could. The jockey, Wallace, testified to the horse's prior bad disposition and attempts to bite, there was the episode of the previous day, the doctor's hospital conversation and, admittedly, the vicious attack on Wally. In all these circumstances the jury could reasonably draw the inference of knowledge of the horse's vicious propensities on the part of the doctor. Merritt v. Matchett, supra. The court summarized the situation in dealing with the case of a 'muley cow' goring an elderly gentleman as he fled from a sidewalk bench and attempted to escape into his yard at 7614 North Broadway: 'It is not essential to the owner's liability that he should have notice of the particular sort of act which produces the injury by an animal in a case like this. He must not wait until his dog bites somebody before taking notice of his dog's conduct, where it has been such as to warn a man of ordinary prudence that the animal is ferocious or vicious in disposition.' O'Neill v. Blase, 94 Mo.App. 648, 667, 68 S.W. 764, 770.

Since, upon the grounds urged, the court did not err in overruling the appellant's motions for judgment, he contends that he is entitled to a new trial because the court (a) permitted plaintiff's counsel to impeach his own witness, Billeaud, and in so doing to indulge in inflammatory charges of misconduct on the part of the defendant, (b) permitted plaintiff to call the court bailiff to testify that he saw defendant speak to witness Billeaud, thereby implying that defendant was guilty of misconduct, and (c) permitted plaintiff's counsel to argue that his client's friends were afraid to come to court and testify in his behalf for fear of losing their jobs. These matters are all related and stem from one trial episode.

The plaintiff called as a witness a jockey, Charles Billeaud, and, without equivocation or qualification, he testified that he had known Sal's Son well, had both exercised the horse and ridden him in six or seven races at Cahokia and Fairmount in 1955 and 1956. He testified that the horse, Sal's Son, would 'sulk' on him, throw him under the fence an 'try to balk at the finish wire.' He was always a troublesome problem at the starting gates, he would 'fight in the gates' and 'tried to flip on me * * * fall over backwards and rear up and dive into it' and when he did go through the gate he left in 'a sun fish * * * get up in the air and do a wiggle, a twist with you and try to drop you and he dropped me between him and the four horses * * *.' Because of his conduct at the gate it was necessary 'to school him' repeatedly. In the paddock he reared up and struck at the 'jennet' (the groom), tried to paw him with both feet but Billeaud grabbed the shank and the horse 'kicked back on me * * * and he put me in the hospital.' On one occasion Sal's Son 'flipped' Billeaud, broke the saddle off, and horse and jockey fought bare back. On another occasion the horse did a 'sun fish' at the starting gate, 'twisted and dropped me and when I hit the ground he tried to savage me' and the jockey was compelled to roll under the fence. He tried to 'savage' the starter...