Lewis v. Great Southwest Corporation

• Decision Date: 15 October 1971
• Docket Number: No. 17251,17251
• Citation: Lewis v. Great Southwest Corporation, 473 S.W.2d 228 (Tex. Ct. App. 1971)
• Parties: Ruby Mae LEWIS, Appellant, v. GREAT SOUTHWEST CORPORATION et al., Appellees.
• Court: Texas Civil Court of Appeals

Page 228

473 S.W.2d 228

Ruby Mae LEWIS, Appellant, v. GREAT SOUTHWEST CORPORATION et al., Appellees.

No. 17251.

Court of Civil Appeals of Texas Fort Worth.

Oct. 15, 1971.

Rehearing Denied No. 19, 1971.

Fred H. Benners, Dallas, for appellant.

Cantey, Hanger, Gooch, Cravens & Munn, David O. Belew, Jr., Richard L. Griffith, and S. G. Johndroe, III, Fort Worth, for appellees.

OPINION

LANGDON, Justice.

Ruby Mae Lewis, a feme sole, the plaintiff, sued Great Southwest Corporation and Six Flags Over Texas, the defendants, for damages for personal injuries sustained by her as the result of being struck (butted down) by a domestic goat which was owned, maintained and exhibited by the defendants in a 'petting zoo' or amusement park owned by them.

The plaintiff's suit is founded upon (1) strict liability for breach of implied warranty of safety of defendants' product, its goat exhibit; (2) strict liability for the keeping and maintenance of animals of dangerous propensities; and (3) negligence in failing to have an attendant on duty at the time in question to help make the exhibit safe.

At the conclusion of plaintiff's case before a jury and trial court granted the motions of the defendants for directed verdicts, withdrew the case from the jury and entered judgment on behalf of both defendants.

This appeal by the plaintiff-appellant is from such judgment based upon three points of error.

Appellant by her first two points contends that the evidence established conclusively that defendants' goat exhibit was defective, in breach of defendants' implied warranty and therefore rendered defendants strictly liable for plaintiff's damages resulting therefrom, and that such evidence raised jury issues as to whether defendants' failure to have adequate attendants on duty in the petting zoo was negligence and a proximate cause of plaintiff's injuries. The third point asserts that under the evidence defendants are strictly liable for damages resulting from defendants keeping and exhibiting such an animal with the natural propensity to butt and do harm.

We affirm.

Plaintiff purchased a ticket and entered the premises of defendants' place of amusement on July 21, 1966, accompanied by her son, A. C. Lewis, and her grandchildren. All of them entered the 'Animal Kingdom', or 'petting zoo' exhibit. The plaintiff was pushing a baby stroller containing her 2 year old grandson. The petting zoo contained approximately 40 animals including goats, sheep and pigs. No signs were posted warning of any dangerous animals nor signs warning patrons that they entered at their own risk. There is an attendant in the petting zoo. His sole purpose was to pick up trash and to keep children from mistreating the animals. 'He has a little broom and a dustpan.' All of the animals in the petting zoo are raised by the defendants. On July 21, 1966, all of the goats (with the exception of two females of three years of age) were not older than six months of age. All male goats in the exhibit were castrated at birth. Patrons of the exhibit are encouraged to touch, feed and pet the animals. Plaintiff, a 57 year old woman, was knocked down by one of the goats in the petting zoo when it struck her in the knee. She was knocked loose from her hold on the baby stroller and fell to the concrete floor. One of her shoes fell off at this time. The goat was standing over the plaintiff and was moved away or 'shooed' by plaintiff's son and another person. Immediately prior to the incident, there has been no harassment of the animals and nothing had occurred which would be calculated to cause excitement to the animals. Plaintiff was raised on a farm and was familiar with the nature and habits of goats. She had observed others feeding the goats in the petting zoo, but she had not been feeding them. The goat on its own volition, without any warning or indication of its intentions, 'butted' the plaintiff. There was no time element involved because there was no previous indication of what was to happen. It just did.

Appellant, under her first and third points of error, seeks to invoke the rule of strict liability in warranty against these defendants, on the same theory as that employed in products liability cases. The latter type cases involve a transfer of possession or sale of a product, whereas the only 'implied warranty' applicable to a patron of an amusement park or an entertainment establishment open to the public is that, 'Those who conduct places of public amusement to which an admission fee is charged owe the duty to exercise ordinary care for the safety of their patrons' (Marek v. Southern Enterprises, Inc., of Texas, 128 Tex. 377, 99 S.W .2d 594, 596 (Tex.Com.App., 1936)) and the duty to use reasonable care to protect her from dangers that could reasonably be anticipated. 'The evidence does not * * * establish a breach of that duty or any causal connection between such an alleged breach and the plaintiff's injury.' Whitfield v. Cox, 189 Va. 219, 52 S.E.2d 72, 76.

The theory of strict liability under any warranty theory is not applicable to the facts of this case. It is well settled that operations of public places of amusement, rodeos, wild west shows, theatres and the like, are not insurers of their patrons' safety. Dalton v. Hooper, 168 S.W. 84, 85 (Dallas, Tex.Civ.App., 1914, no writ hist.); Zuniga v. Storey, 239 S.W.2d 125 (San Antonio, Tex.Civ.App., 1951, writ ref., n.r.e.); Vance v. Obadal,256 S.W.2d 139 (El Paso, Tex.Civ.App., 1953, writ ref.); East Texas Theatres, Inc. v. Rutledge, 453 S.W.2d 466 (Tex.Sup., 1970).

There are no pleadings, evidence, or points of error pertaining to the application of the doctrine of res ipsa loquitur, '* * * we cannot indulge a presumption of negligence from the happening of the accident, and the burden of proving such negligence rests upon appellant.' Henry v. Publix Theatres Corporation, 25 S.W.2d 695, 698 (Dallas, Tex.Civ.App., 1930, writ ref.).

Appellant's pleadings based upon warranty constitutes merely a general plea of negligence and is not applicable to the evidence produced in the trial court. The trial judge properly refused this theory as applied to the evidence as a matter of law. Assuming that a general plea of negligence is permissible, the record does not show any breach of a legal duty. The owner of a domestic animal is not liable for injuries caused by it in a place where it has a right to be, unless the animal is of known vicious propensities or the owner should know of the vicious or unruly nature of the animal. Clarendon Land Inv. & Ag. Co. v. McClelland, 89 Tex. 483, 34 S.W. 98 (1896); 3 Tex.Jur.2d, Animals, § 39, p. 114.

In Dawkins v. Van Winkle, 375 S.W.2d 341, 343 (Waco, Tex.Civ.App., 1964, writ dism'd, w.o.j., at 377 S.W.2d 830) the court said:

'Our view of this record is that there is no evidence of probative force that the bull was vicious or had vicious propensities which were known to appellee; * * *. As we understand the rule of law here applicable it only imposed upon the defendant and his employees the duty to use that degree of care that an ordinary prudent person would have used * * *. The burden was on plaintiffs to show that such care was not used * * *. See Carson v. Knight (Com.App.), 294 S.W. 539 * * * D-Bar Ranch v. Maxwell, Tex.Civ.App., 170 S.W.2d 303 (w.o.m.).'

The appellees-defendants were not guilty of any breach of duty in merely owning, keeping and offering to the public for display a herd of female and stag domestic goats.

'That which happened to plaintiff's wife is that which common experience tells us might happen to anyone, who in order to enjoy the devices commonly offered to the public for its amusement, accepts the normal dangers attendant thereto. * * * Justice Cardozo observed in the case of Murphy v. Steeplechase Amusement Co., Inc., * * * (250 N.Y. 479, 166 N.E. 172, 174) 'The timorous may stay at home." Vance v. Obadal, 256 S.W.2d 139, 141, supra.

'Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball. * * *' Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 166 N.E. 173 (N.Y.Ct. of App., 1929).

By her third point of error, appellant charges that the defendants are strictly liable for keeping and exhibiting such an animal 'with the natural propensity to butt and do harm.' Under this record there is no evidence that any of the goats in the 'petting zoo' had ever evidenced any dangerous propensity prior to the incident in question.

In 4 Am.Jur.2d, Animals, Sec. 2, page 251, it is said:

'Generally, the present day classification of animals, and one which has been recognized from the earliest date of recorded history, is twofold: wild or ferae naturae, and domestic or domitae naturae. Animals ferae naturae are such as are of a wild nature or disposition and so require to be reclaimed and made tame by art, industry, or education, or else must be kept in confinement to be brought within the immediate power of the owner. Animals domitae naturae, on the other hand, are those which are naturally tame and gentle or which, by long continued association with man, have become thoroughly domesticated and are now reduced to such a state of subjection to his will that they no longer possess the disposition or inclination to escape. The class of domestic animals includes cattle, horses, sheep, goats, pigs, poultry, cats, and all other animals which by habit or training live in association with man. * * *'

Under the record in this case we are dealing with a plain ordinary goat which is classified as a domestic animal and comes under the following rule:

'With regard to an animal not naturally vicious, the general rule, in the absence of statute, is that the owner of the animal is not answerable for injuries done by it when in a place where it had a...