Leipske v. Guenther

• Decision Date: 07 April 1959
• Citation: 7 Wis.2d 86,95 N.W.2d 774
• Parties: Sharon LEIPSKE, by Violet Leipske, her guardian, Plaintiff and Appellant, v. Walter GUENTHER, Defendant and Respondent.
• Court: Wisconsin Supreme Court

Page 774

95 N.W.2d 774

7 Wis.2d 86

Sharon LEIPSKE, by Violet Leipske, her guardian, Plaintiff and Appellant, v. Walter GUENTHER, Defendant and Respondent.

Supreme Court of Wisconsin.

April 7, 1959.

Rehearing Denied June 2, 1959.

Max E. Geline, Milwaukee, for appellant.

James D'Amato, Waukesha, for respondent.

HALLOWS, Justice.

The trial court was right in refusing to submit a question of defendant's negligence to the jury. There was no evidence on which a finding of negligence could properly have been based.

In cases where damage is done by animals, the question of the custodian's causal negligence has been treated as depending on reasonable foreseeability that injury to someone may follow. See McCauley v. International Trading Co., 1954, 268 Wis. 62, 68-70, 66 N.W.2d 633; Matthews v. Scannell, 1930, 201 Wis. 381, 383, 230 N.W. 53; Fox v. Koehnig, 1926, 190 Wis. 528, 538-543, 209 N.W. 708, 49 A.L.R. 903. It has been said that generally the owner of an animal is bound to anticipate only such injurious acts as result from the natural traits of the animal or from unusual traits of which he has knowledge, Fox v. Koehnig, 1926, 190 Wis. 528, 542, 209 N.W. 708, and hence that a horse of previous good character is entitled to a free first kick. Kocha v. Union Transfer Co., 1925, 188 Wis. 133, 136, 205 N.W. 923. The opinion in the Kocha case is written in the lighter vein of which Mr. Justice Eschweiler was a master.

In the present case it is undisputed that the horse pasture was separated from the school yard by a fence at least 4 feet 7 inches high, consisting of woven wire with three strands of barbed wire, which fence fully met the statutory requirements for 'legal and sufficient fences' (sec. 90.02(1), Stats.) There was no evidence that Brownie had ever bitten or threatened to bite any person, and no evidence that defendant had any reason to believe that Brownie was likely to bite somebody or was vicious in any respect, or that he was anything but a normal, gentle 7 year old horse. While some of the school children testified that they had seen Brownie kick and bite other horses and act in a menacing manner toward the children who teased the horses, there was no evidence that such acts had been brought to defendant's attention. Defendant was not bound to anticipate that the children would tease the normally gentle animal to the point where he would reach over the ordinarily adequate fence and bite somebody. Thus we find no evidence on which defendant could have been wanting in ordinary care.

'In other words, when applying the doctrine of negligence, it seems to be settled as a matter of law that the owner is bound to anticipate only such damages as result from the natural traits and habits of the animals, or from those unnatural traits and habits of the individual animal of which he has knowledge.' Fox v. Koehnig, 1926, 190 Wis. 528, 543, 209 N.W. 708, 713.

While there was testimony that prior to the accident defendant had asked the school authorities to keep the children away from the horses, that request appears to have been occasioned by the fact that children had climbed over the fence and ridden some ponies in the pasture. It is not evidence that defendant suspected or had reason to suspect that Brownie might injure a child on the school grounds.

Appellant further contends that even if defendant was not negligent he was absolutely liable for her damages, on the ground that the horse Brownie was a trespasser on the school land when he bit her and that the possessor of a trespassing animal is absolutely liable for the damage done by the animal in the course of the trespass.

For present purposes we may assume that Brownie trespassed on school property when he reached over the fence, since the ownership of the space above the land is vested in the owner of the surface beneath (sec. 114.03, Stats.), and see Maitland v. Twin City Aviation Corp., 1949, 254 Wis. 541, 545, 37 N.W.2d 74, and Brownie had no right to insert his head into that space. We may also assume, without deciding, that since the plaintiff was on the school ground incidentally to her school attendance she can maintain an action based on the trespass on the analogy of a member of a private possessor's household, though she was not the owner or possessor of the land. See Rest. 3 Torts, sec. 504(1).

On those assumptions we reach the question of the defendant's absolute liability for the act of his erring horse.

It has often been stated broadly in this and other jurisdictions that regardless of negligence the possessor of an animal is absolutely liable for damage done while the animal is trespassing on the land of another. See for example Harrison v. Brown, 1856, 5 Wis. 27, 30-31; Chunot v. Larson, 1878, 43 Wis. 536, 541; Metropolitan Casualty Co. v. Clark, 1911, 145 Wis. 181, 183, 129 N.W. 1065, 37 L.R.A.,N.S., 177; Rest. 3 Torts, sec. 504(1); 2 Harper & James Law of Torts, 837.

More recent Wisconsin cases have cast doubt upon the broad applicability of that proposition to common domestic animals such as horses. Thus in Fox v. Koehnig, 1926, 190 Wis. 528, 209 N.W. 708, a case involving injuries inflicted by a horse running...