Lins v. Boeckeler Lumber Company

• Decision Date: 08 November 1927
• Citation: 299 S.W. 150,221 Mo.App. 181
• Parties: WILLIAM F. LINS, JR., RESPONDENT, v. BOECKELER LUMBER COMPANY, A CORPORATION, APPELLANT. [*]
• Court: Missouri Court of Appeals

299 S.W. 150

221 Mo.App. 181

WILLIAM F. LINS, JR., RESPONDENT, v. BOECKELER LUMBER COMPANY, A CORPORATION, APPELLANT. ^[*]

Court of Appeals of Missouri

November 8, 1927

Appeal from the Circuit Court of the City of St. Louis.--Hon William H. Killoren, Judge.

AFFIRMED.

Judgment affirmed.

Jourdan & English and A. B. Lansing for appellant.

(1) There can be no actionable negligence in the absence of a duty to use care owing from defendant to plaintiff. Spurling v. La Crosse Lumber Co., 220 S.W. 707; Davidson v. Railway Co., 229 S.W. 786. (2) There is no duty upon the owner of a domestic animal to restrain said animal from ranging on the public highway, and the owner of such animal is not liable in damages to one injured by such animal, except to the owner of soil upon which the animal may trespass, or for injuries due to previously exhibited vicious propensities. Lyman v. Dale, 262 Mo. 365; McPheeters v. Railroad, 45 Mo. 22; Colvin v Sutherland, 32 Mo.App. 77; Turner v. R. R. Co., 78 Mo. 580; Davis v. Ry. Co., 19 Mo.App. 431; Burger v. Ry. Co., 52 Mo.App. 127; Gorman v Pacific Railroad, 26 Mo. 445, 446; Hill v. Mo. Pacific Ry. Co., 49 Mo.App. 533; Leach v. Lynch, 144 Mo.App. 394; Evans v. McLalin, 175 S.W. 294; Higgins v. Searle, 25 Times L. R. 301; Heath's Garage v. Hodges, 32 Times L. R. 134; Dyer v. Mudgett, 107 A. 831 (Maine) ; Brady v. Straub, 177 Ky. 468, 469; Klenberg v. Russell, 125 Ind. 531, 534; Casper v. Anglo-American Prov. Co., 159 Ill.App. 573; Marsh v. Koons, 84 N.E. 599. (3) It is not negligent to allow a domestic animal to escape and be on the public highway, because the owner has the right to put his domestic animal on the highway to range at will. Cases cited under point 2. (4) Where a domestic animal running away from its owner or custodian for the first time, having previously had sufficient opportunity to run away and was not having exhibited any propensity to do so, a statute requiring the owner to restrain such animal is not violated and furnishes no basis for a claim of negligence on the part of the owner. Spitzler v. Young, 63 Mo. 42; Vail v. Ry. Co., 28 Mo.App. 378; Casper v. Anglo-American Prov. Co., 159 Ill.App. 573. (5) An instruction is erroneous which assumes an issuable fact. Boyd v. Railroad, 249 Mo. 110; Solomon v. Duncan, 194 Mo.App. 517; Davies v. Mann, 10 M. & W. 545 (cited by our Supreme Court in Lyman v. Dale, 262 Mo. 366, and Walsh v. Transportation Co., 52 Mo. 439). (6) The driver of an automobile is contributorily negligent if his headlights fail to display an object in the roadway within stopping distance, and this applies to objects on the side of the road. Solomon v. Duncan, 194 Mo.App. 517; Hornbuckle v. McCarty, 295 Mo. 163. (7) A verdict of $ 5000 is grossly excessive where there were no broken bones and only minor injuries. Smart v. Railroad, 164 Mo.App. 61. (8) By offering an instruction based only on common-law negligence plaintiff thereby abandons the charges of negligence based on statutes. Dietzman v. St. Louis Screw Co., 254 S.W. 59. (9) This court has no jurisdiction to determine this case unless the statutes are out of the case by abandonment. Taylor v. Railroad, 207 Mo. 499. (10) Section 13860, R. S. 1919, as set forth in plaintiff's petition, is unconstitutional in that it constitutes a local or special law regulating the affairs of a county and in that the said act is local and special where a general law could be made applicable. Constitution of Missouri, Article IV, sec. 53, Clause 2 and Clause 32; Sec. 4275, R. S. 1919; State ex inf. Mueller v. Fry, 300 Mo. 541. (11) Section 4275, R. S. 1919, cannot control the decision in this case, because (a) it is unconstitutional and void as being a local and special law regulating the affairs of counties; and (b) no evidence was introduced that said law was in effect in the county in which this accident took place. Constitution of Missouri, Article IV, sec. 53, Clause 2; Constitution of Missouri, Article IV, sec. 54; Lambert v. Lidwell, 62 Mo. 188; State v. Hays, 78 Mo. 600; Trenton v. De Vorss, 70 Mo.App. 12. (12) Neither section 13860, nor section 4275, R. S. 1919, are in force in St. Louis County, the one because it is a special law and unconstitutional and because it has been repealed by the general law, the other because it is either unconstitutional, or, in any event, has never been adopted in St. Louis County, and, therefore, this case should be reversed outright, for a new trial will do no good. Berkshire v. Mo. P. Ry. Co., 28 Mo.App. 225; Crumley v. K. C. C. & S. Ry. Co., 32 Mo.App. 505.

Frederick A. Wendt and Arnim C. Beste for respondent.

(1) It constituted negligence for the defendant to suffer and permit its mules to run at large upon the public highways. Hill v. Scott, 38 Mo.App. 370; Becker v. Schutte, 85 Mo.App. 57; Ward v. Steffan, 88 Mo.App. 571; Agnew v. Railroad, 178 Mo.App. 119, l. c. 123; Miller v. United Rys., 155 Mo.App. 528, 537; Ornstein & Rice Co. v. Hirschfield Skirt Co., 198 Mo.App. 140, l. c. 154; Gannon v. Laclede Gas Light Co., 145 Mo. 502; Lynch v. Nurdin, 1 Ad. & E. (N. S.) 29; Wharton Law of Negligence (1874), page 114; 1 Sherman & Redfield, Negligence (1913), pages 68-69; 29 C. J. 664. (2) For any negligence in the keeping of a domestic animal whereby injury is occasioned to another, the owner is responsible. Hill v. Scott, 38 Mo.App. 370; Becker v. Schutte, 85 Mo.App. 57; Miller v. United Rys., 155 Mo.App. 528, 537; 1 R. C. L., pages 1094-1096; Stewart v. Wild, Iowa (1923), 195 N.W. 266; Baldwin v. Ensign, 49 Conn. 113; Goodwin v. Gay, 15 Penn. St. 188; Goodwin v. Cheveley, 4 H. & N. 631; Erdman v. Gootshall, 9 Pa.Super. 295; 3 C. J. 133; Fallan v. O'Brien, 12 R. I. 518. (3) Even in the absence of any known viciousness of a domestic animal, the owner of said animal is nevertheless responsible and liable in damages to one injured where the circumstances and the occasion were such as to show carelessness on the part of the owner with respect to the convenience and safety of travelers upon the highway. Cases cited under point 2. (4) Whether the defendant successfully rebutted the case made by plaintiff's evidence was for the jury to determine. Gannon v. Laclede Gas Light Co., 145 Mo. 502. (5) The instruction offered by plaintiff was properly given by the court. Hornbuckle v. McCarty (Div. 1, 1922), 295 Mo. 162, l. c. 172. (6) The instruction offered by defendant on the question of contributory negligence was properly refused by the court. McCauley v. Anheuser-Busch Brewing Association, 254 S.W. 868; Hanke v. City of St. Louis, 272 S.W. 933. (7) The verdict in the sum of five thousand dollars is not excessive in view of the injuries sustained by the plaintiff and the damage done to his automobile. Shuff v. Kansas City, 282 S.W. 128; Willis v. Buchanan County Quarries Co., 268 S.W. 102. (8) Section 4275, R. S. 1919, is a valid exercise of authority of the State Legislature and it is not necessary to introduce evidence that said law was in effect in the county in which the accident occurred. R. S. 1919, section 1415. (9) Section 13860, R. S. 1919, is a valid exercise of the authority of the Missouri Legislature. (10) Section 7048, R. S. 1919, provides that the common law of England, if not repugnant or inconsistent with our Statutes, shall be the rule of action and decision in this State, any custom or usage to the contrary.

NIPPER, J. Daues, P. J., and Becker, J., concur.

OPINION

NIPPER, J.

This is an action for damages for personal injuries caused by a collision between an automobile driven by the plaintiff, and a mule owned by defendant. There were three grounds of negligence alleged in the petition, which are as follows:

1. That the defendant negligently permitted said mule to run at large in violation of section 13860, Revised Statutes 1919.

2. That defendant negligently suffered and permitted said mule to run at large in violation of section 4275, Revised Statutes 1919.

3. That defendant negligently and carelessly caused, suffered and permitted the said mule to run at large, unrestrained and unattended, when defendant knew, or, by the exercise of ordinary care could have known, that said mule would go upon said highway.

The answer of defendant contained a general denial and also raised the question of the constitutionality of the Statutes referred to and relied upon in the petition. The answer also contained by way of counterclaim, an allegation to the effect that the plaintiff negligently and carelessly operated his automobile on said occasion, and that as a result of his negligence, the mule of defendant had been killed, and defendant asked judgment against plaintiff in the sum of $ 250.

The testimony showed that at about one o'clock in the morning on October 2, 1924, plaintiff was driving westwardly on the St. Charles Rock road at about eighteen or twenty miles an hour. When he reached a railroad crossing he slowed down to about twelve or fifteen miles an hour; that when he had crossed a bridge and was about one hundred and fifty to two hundred feet beyond the same, this mule appeared directly in the road in front of him, and there was a collision causing plaintiff's injury. Plaintiff was driving on the right-hand side of the road at the time the collision occurred.

When the case was submitted to the jury plaintiff abandoned all the assignments of negligence in the petition except No. 3 which relied for recovery upon defendant's violation of its common-law duty. Therefore, though constitutional questions were originally raised and properly preserved, plaintiff having abandoned the first two assignments of negligence in the petition, and the case having gone to the jury solely upon the defendant's violation of its common-law duty, no constitutional question remains in the...