Kelly v. Willis

• Decision Date: 25 November 1953
• Docket Number: No. 311,311
• Citation: 78 S.E.2d 711,238 N.C. 637
• Parties: KELLY, v. WILLIS.
• Court: North Carolina Supreme Court

Page 711

78 S.E.2d 711

238 N.C. 637

KELLY, v. WILLIS.

No. 311

Supreme Court of North Carolina.

Nov. 25, 1953

C. R. Wheatly, Jr., Beaufort, for plaintiff, appellant.

Luther Hamilton and Luther Hamilton, Jr., Morehead City for defendant, appellee.

ERVIN, Justice.

The appeal is concerned solely with the propriety of the compulsory nonsuit.

The statute codified as G.S. § 68-23 provides that 'if any person shall allow his livestock to run at large within the limits of any county, township or district in which a stock law prevails or shall prevail pursuant to law, he shall be guilty of a misdemeanor, and fined not exceeding fifty dollars of imprisoned not exceeding thirty days.' This enactment is clearly applicable to this case because the events culminating in this litigation undoubtedly occurred in territory covered by the stock law. G.S. § 68-39.

The statute under scrutiny expressly subjects the owner of livestock to criminal responsibility as a misdemeanant if he knowingly allows his livestock to run at large in stock-law territory. State v. Brigman, 94 N.C. 888; Sharp v. State, 25 Ala.App. 491, 149 So. 355; 3 C.J.S., Animals, § 141. It impliedly subjects the owner of livestock to civil responsibility as a tort feasor if he knowingly or negligently permits his livestock to roam at large in stock-law territory, and in that way proximately causes injury to the person or property of another. Gardner v. Black, 217 N.C. 573, 9 S.E.2d 10. Moreover, the common law, acting independently of this or any other legislative enactment, imposes upon the owner of livestock civil responsibility as a tort feasor if he knowingly or negligently suffers his livestock to be at large on a highway, and in that way proximately causes injury to the person or property of a user of the highway. Bethune v. Bridges, 228 N.C. 623, 624, 46 S.E.2d 711; Gardner v. Black, supra; Lloyd v. Bowen, 170 N.C. 216, 86 S.E. 797; Rice v. Turner, 191 Va. 601, 62 S.E.2d 24; Smith v. Whitlock, 124 W.Va. 224, 19 S.E.2d 617, 140 A.L.R. 737; 2 Am.Jur., Animals, section 60.

The plaintiff did not offer any direct evidence tending to show that the defendant knowingly or negligently allowed his mule to run at large on the highway. He was not required to do so. It was permissible for him to produce circumstantial evidence sufficient to establish this crucial fact. Wyrick v. Ballard & Ballard Co., Inc., 224 N.C. 301, 29 S.E.2d 900; Corum v. R. J. Reynolds Tobacco Co., 205 N.C. 213, 171 S.E. 78; Lynch v. Carolina Telephone & Telegraph Co., 204 N.C. 252, 167 S.E. 847.

According to the evidence, the collision between the plaintiff's truck and the defendant's mule marked the fourth occasion within a fortnight on which the mule wandered, unattended, uncontrolled, and unrestrained in proximity to the highway half a mile from the defendant's farm. When this evidence is interpreted in the light most favorable to the plaintiff, it is ample to support the inference that the mule was at large on the highway at the moment of the collision simply because the defendant knowingly or negligently allowed it to be there. The other evidence is sufficient to sustain the additional inference that the wrongful act or the negligent omission of the defendant was the sole proximate cause of the collision and the resultant damage to the truck.

It necessarily follows that the entry of the compulsory nonsuit constituted error regardless of whether the court acted on the theory that the evidence was inadequate to show legal culpability on the part of the defendant or on the theory that the plaintiff's driver was contributorily negligent as a matter of law.

The facts in this case are unlike those in Bethune v. Bridges, supra, and Gardner v. Black, supra, where the offending animals did not run at large before the events producing the litigation.

The compulsory nonsuit is

Reversed.

WINBORNE, Justice (dissenting).

I am unable to agree with the majority opinion on this appeal. Taking the evidence in the case in the light most favorable to plaintiff, and giving to him the benefit of every reasonable intendment and every reasonable inference to be drawn therefrom, and applying the rules of law laid down by this Court in the case of Gardner v. Black, 217 N.C. 573, 9 S.E.2d 10 (one member now deceased dissenting), I am of opinion that the judgment of nonsuit entered in Superior Court was, and is proper.

The evidence offered by plaintiff, as shown in the record, as I read it, is as follows: A collision occurred about 11 o'clock on Sunday night, August 12, 1951, between plaintiff's 1946 one-half ton Chevrolet pickup truck, operated with his permission by his 16-year old step-son, Allen Howard Garner, and defendant's mule. It occurred on U.S. Highway No. 70, as the truck was traveling westwardly from Morehead City, N.C., toward Newport, N. C., in the vicinity of a place of business located on the north side of the highway, and known as the 'Wagon Wheel'.

Allen Howard Garner, as witness for plaintiff, testified: That the pickup truck was equipped with excellent or perfect lights, enabling him to see at least 200 feet down the highway; that the brakes were good,--in perfect condition; that he could drive well and safely; that the traffic was not heavy, and there were no vehicles within one-half mile of him except those meeting him; that he could see almost as well in passing those vehicles as when not passing them; that his speed was...