Marshall v. Ranne

• Decision Date: 01 May 1974
• Docket Number: No. B--4024,B--4024
• Citation: Marshall v. Ranne, 511 S.W.2d 255 (Tex. 1974)
• Parties: Paul MARSHALL, Petitioner, v. John C. RANNE, Respondent.
• Court: Texas Supreme Court

Page 255

511 S.W.2d 255

Paul MARSHALL, Petitioner, v.John C. RANNE, Respondent.

No. B--4024.

Supreme Court of Texas.

May 1, 1974.

On Rehearing June 19, 1974.

Rehearing Denied July 17, 1974.

Brown, Brown & Bowen, James F. Bowen, Garland, Hernandez, Cazorla & Alexander, Dallas, for petitioner.

Kenley, Boyland, Hawthorn, Starr & Coghlan, Herbert Boyland, Longview, for respondent.

POPE, Justice.

Paul Marshall instituted this suit against John C. Ranne seeking damages for injuries he sustained when Ranne's vicious hog attacked him and severely injured his hand.The jury made findings that plaintiff Marshall was contributorily negligent and also that he voluntarily assumed the risk of the hog.The trial court rendered judgment for the defendant on the verdict.The court of civil appeals ruled that the findings of the jury concerning the plaintiff's assumption of the risk supported the judgment and affirmed.493 S.W.2d 533.We reverse the judgments of the courts below and render judgment for the plaintiff Marshall.

The opinion of the court of civil appeals correctly states these operative facts:

The only witness to the occurrence was plaintiff.He and defendant both lived in Dallas, but they owned neighboring farms in Van Zandt County.Plaintiff's principal occupation was raising hogs.At the time of the injury he had about two hundred on his farm.The hog in question was a boar which had escaped from defendant's farm and had been seen on plaintiff's land during several weeks before the day of the injury.According to plaintiff, defendant's boar had charged him ten to twelve times before this occurrence, had held him prisoner in his outhouse several times, and had attacked his wife on four or five occasions.On the day of the injury plaintiff had hauled in several barrels of old bread in his pickup and had put it out for his hogs at the barn.At that time he saw defendant's boar about a hundred yards behind the barn, but it came no nearer.After feeding his hogs, he went into the house and changed clothes to get ready to go back to Dallas.On emerging from the house, he looked for the boar because, as he testified, he always had to look before he made a move, but he did not see it.He started toward his pickup, and when he was about thirty feet from it, near the outhouse, he heard a noise behind him, turned around and saw the boar charging toward him.He put out his hand defensively, but the boar grabbed it and bit it severely.

Plaintiff testified that the first time the hog had jeopardized his safety was about a week or ten days before he was hurt.He did not shoot the hog because he did not consider that the neighborly thing to do, although he was an expert with a gun and had two available.He made no complaint about the hog to defendant until the day of the injury, when he wrote a note and put it on defendant's gate.The note read:

'John, your boar has gone bad.He is trying to chase me off the farm.He stalks us just like a cat stalks a mouse every time he catches us out of the house.We are going to have to get him out before he hurts someone.'

This note did not come to defendant's attention until he came in late that afternoon, and the evidence does not reveal whether he saw it before plaintiff was injured.Plaintiff testified that he and defendant had previously discussed the hog's viciousness on several occasions.

The answers to the special issues were: (1)defendant's boar hog bit the plaintiff's right hand on January 21, 1970, (2) immediately prior to that date, the boar hog had vicious propensities and was likely to cause injury to persons, (3) refused to find that at any time before plaintiff's injury, the defendant actually knew that the defendant's boar hog was vicious and was likely to cause injury to persons, (4)the defendant prior to plaintiff's injury in the exercise of ordinary care should have known that the boar hog was vicious and likely to cause injury to persons, (5)defendant permitted his boar hog to run at large after he knew or should have known that the hog was vicious and likely to cause injury to persons, (6)plaintiff, Paul Marshall, had knowledge of the vicious propensities of the defendant's boar hog and that it was likely to cause injury to persons at and prior to the time the hog bit him, (7)plaintiff, Paul Marshall, with knowledge of the nature of defendant's boar hog voluntarily exposed himself to the risk of attack by the animal, (8)plaintiff's failure to shoot the defendant's boar hog prior to the time the hog bit plaintiff was negligence, (9) which failure was a proximate cause of plaintiff's injuries, (10)plaintiff failed to maintain a fence about his premises sufficiently close to prevent hogs passing through, (11) which was negligence, and (12) a proximate cause of plaintiff's injuries, (13)plaintiff was damaged in the amount of $4,146.00.

The questions presented by this cause are (1) the true nature of an action for damages caused by a vicious animal, (2) whether contributory negligence is a defense to this action, and (3) whether plaintiff Marshall was, as a matter of law, deprived of a voluntary and free choice in confronting the risk.

Nature of Vicious Animal Cases

A correct classification of this case is important, since that decision also controls the nature of the acceptable defenses to the action.In Texas, actions for damages caused by vicious domestic animals have sometimes been cast as common law negligence cases, at other times as strict liability cases, and sometimes as either.Comment, Personal Injuries by Animals in Texas, 4 BaylorL.Rev. 183(1952).Among the cases which have been pleaded and tried as negligence cases are: H. E. Butt Grocery Company v. Perez, 408 S.W.2d 576(Tex.Civ.App.1966, no writ);Zuniga v. Storey, 239 S.W.2d 125(Tex.Civ.App.1951, writ ref'd n.r.e.);Dakan v. Humphreys, 190 S.W.2d 371(Tex.Civ.App.1945, no writ);Herring v. Schingler, 101 S.W.2d 394(Tex.Civ.App.1937, writ dism'd);Villareal v. Alexander, 13 S.W.2d 712(Tex.Civ.App.1929, no writ);Pettus v Weyel, 225 S.W. 191(Tex.Civ.App.1920, writ ref'd);Trinity & S. Ry. Co. v. O'Brien, 18 Tex.Civ.App. 690, 46 S.W. 389(1898, no writ);Badali v. Smith, 37 S.W. 642(Tex.Civ.App. 1896, no writ).

Strict liability has been applied in about an equal number of vicious animal cases.In Moore v. McKay, 55 S.W.2d 865(Tex.Civ.App.1933, no writ), the court noticed that Badali v. Smith, 37 S.W. 642(Tex.Civ.App.1896, no writ), in applying negligence rules conflicted with Triolo v. Foster, 57 S.W. 698(Tex.Civ.App.1900, no writ), which charged an owner with liability for damages for injuries in keeping an animal which the owner knew or had reason to know was vicious.The court ruled that the defendant's negligence was not the proper basis for liability.Comment, Personal Injuries by Animals in Texas, 4 BaylorL.Rev. 183(1952).These cases have approved the strict liability theory: Wells v. Burns, 480 S.W.2d 31(Tex.Civ.App.1972, no writ);Arrington Funeral Home v. Taylor, 474 S.W.2d 299(Tex.Civ.App.1971, writ ref'd n.r.e.);Lewis v. Great Southwest Corporation, 473 S.W.2d 228(Tex.Civ.App.1971, writ ref'd n.r.e.);Hill v. Palms, 237 S.W.2d 455(Tex.Civ.App.1951, no writ);Bly v. Swafford, 199 S.W.2d 1015(Tex.Civ.App.1947, no writ);Gamer v. Winchester, 110 S.W.2d 1190(Tex.Civ.App.1937, writ dism'd);Moore v. McKay, Supra;Copley v. Wills, 152 S.W. 830(Tex.Civ.App.1913, no writ);Barklow v. Avery, 40 Tex.Civ.App. 355, 89 S.W. 417(1905, no writ);Triolo v. Foster, Supra;Note, 16 Tex.L.Rev. 395(1938).

We approve the rule expressed in Moore v. McKay, Supra, that suits for damages caused by vicious animals should be governed by principles of strict liability, and disapprove the cases which hold the contrary.W. Prosser, Law of Torts§ 76 (4th ed. 1971);2 F. Harper & F. James, the Law of Torts§ 14.11(1956).The correct rule is expressed in Restatement of Torts§§ 507, 509(1938):

S 507.LIABILITY OF POSSESSOR OF WILD ANIMAL.

Except as stated in §§ 505and517, a possessor of a wild animal is subject to liability to others, except trespassers on his land, for such harm done by the animal to their persons, lands or chattels as results from a dangerous propensity which is characteristic of wild animals of its class or of which the possessor has reason to know, although he has exercised the utmost care to confine the animal or otherwise prevent it from doing harm.

S 509.HARM DONE BY ABNORMALLY DANGEROUS DOMESTIC ANIMALS.

Except as stated in § 517, a possessor of a domestic animal which he has reason to know has dangerous propensities abnormal to its class, is subject to liability for harm caused thereby to others, except trespassers on his land, although he has exercised the utmost care to prevent it from doing the harm.

The jury in this case refused to find that the defendant actually knew that the hog was vicious and was likely to cause injury to persons, but it did find in answer to special issue four that the defendant prior to plaintiff's injury should have known that fact.Defendant Ranne does not challenge the finding to issue four.

The Restatement, quoted above, uses the phrase 'has reason to know' and the fourth special issue submitted in this case used the phrase 'should have known.'There is no essential distinction between the two terms as explained in Restatement (Second) of Torts§§ 12(1965):

S 12.REASON TO KNOW; SHOULD KNOW

(1) The words 'reason to know' are used throughout the Restatement of this Subject to denote the fact that the actor has information from which a person of reasonable intelligence or of the superior intelligence of the actor would infer that the fact in question exists, or that such person would govern his conduct upon the assumption that such fact exists.

(2) The words 'should know' are used throughout the Restatement of this Subject to denote the fact that a person of reasonable prudence and intelligence or of the superior...