Moss v. Bonne Terre Farming & Cattle Co.

• Decision Date: 06 November 1928
• Citation: 10 S.W.2d 338,222 Mo.App. 808
• Parties: DAN MOSS, RESPONDENT, v. BONNE TERRE FARMING & CATTLE COMPANY, A CORPORATION, APPELLANT. [*]
• Court: Missouri Court of Appeals

10 S.W.2d 338

222 Mo.App. 808

DAN MOSS, RESPONDENT, v. BONNE TERRE FARMING & CATTLE COMPANY, A CORPORATION, APPELLANT. ^[*]

Court of Appeals of Missouri, St. Louis

November 6, 1928

Appeal from the Circuit Court of Jefferson County.--Hon. E. M Dearing, Judge.

AFFIRMED.

Judgment affirmed.

P. S Terry for appellant.

(1) Suffering or permitting an animal to go at large implies knowledge, consent or willingness on the part of the owner or such negligent conduct as is equivalent thereto, but does not comprehend a case where, through some untoward circumstance, the owner is unable to watch and care for it in a particular instance. (b) In order to constitute "running at large," within the meaning of the statute, it must appear that such running at large by the animal was with the knowledge and consent of the owner. 3 Corpus Juris, 180; Evans v. Holman, 202 Mo. 284; Spitler v. Young, 63 Mo. 42; City of Union v. Lendemann, 242 S.W. 416; Putermann v. Simon, 127 Mo.App. 511; Head v. Powells, 212 Mo.App. 310; Merritt v. Matchett, 135 Mo.App. 176; 3 Corpus Juris, 89; 3 Corpus Juris, 97; Smith v. Matteson, 41 Hun. 216, 4 N.Y. 204. (2) The gist of the offense defined by law is permitting an animal to run at large. It is obviously necessary to show some negligence, at least, on the part of the owner to bring the latter within the reach of the penalties denounced. Spitler v. Young, 63 Mo. 42; McVey v. Barker, 92 Mo.App. 498, distinguishing between permitting animals from running at large and the proceeding against the animal itself where found outside of the enclosure without any fault of the owner. See, also, Evans v. Holman, 202 Mo. 284; Head v. Powells, 212 Mo.App. 310; 3 Corpus Juris, 97. (3) There can be no recovery for an injury resulting from domestic animals being at large where the owner has exercised the care of a prudent person in restraining them, or when it is at large without any fault of his and when he promptly pursues it. The liabilities of owners of domestic animals have been expressed in the following manner: First. There is a cause of action given to the owner of stock killed by stock of another, based upon the negligence of the defendant. Second. There is a cause of action known to the common law for the damages done by a domestic animal of vicious propensities accustomed to mischief known to the owner. Third. The owner of the animal may be liable for damage done by it as a result of his negligence, even though the animal has no vicious characteristics. And these are the only ways in which an owner of a domestic animal may be liable. Head v. Powell, 212 Mo.App. 310; Staeter v. McArthur, 33 Mo.App. 218; Short v. Bohle, 64 Mo.App. 242; 3 Corpus Juris, page 89; 3 Corpus Juris, page 95. (4) Where an animal escaped from the owner and it does injury that the animal could not reasonably be expected to do or the injury be not reasonably anticipated, then the owner is not liable. 3 Corpus Juris, 97; Romany v. Bishop, 105 N.W. 407; Puterman v. Simon, 127 Mo.App. 511; 17 Corpus Juris, 877. (5) The keeper of domestic animals (mules) is not an insurer of the public against the animal getting out of the enclosure of the owner and straying upon the highway and injuring persons. Beckett v. Beckett, 48 Mo. 396; Staeter v. McArthur, 33 Mo.App. 218; Bell v. Lesslie, 24 Mo.App. 661; 3 Corpus Juris, 89. (6) Instruction No. 2, given on behalf of plaintiff, makes the owner of a domestic animal (including mules) an insurer against accidents caused by domestic animals and changes the rule of law from the duty of keeper of domestic animals to the same duty as that of keeper of wild animals. 3 Corpus Juris, 87. (7) The measure of damages is the reasonable cost of putting the car in good condition, together with the loss of the use of the car for such repair period, provided that said costs of repairing and the time used in making the repairs does not exceed the value of the car before the injury, and if the costs of repairing and the loss of the use of the car while the car is being repaired exceed the value of the car before the injury, then the measure of damages is the difference between the value of the car before the injury and after the injury. Stanley v. Weber Implement Co., 190 S.W. 372; Gilwee v. Pabst Brewing Co., 195 Mo.App. 487; Morrow & France v. Wabash Railway Co., 219 Mo.App. 63. (8) The plaintiff was guilty of contributory negligence barring recovery.

Frank Dietrich and R. E. Kleinschmidt for respondent.

(1) It was unnecessary to prove that the Stock Law was in force, as defendant failed to put that fact in issue by affidavit filed with his pleadings. Section 1415, R. S. 1919. (2) It is unlawful for defendant's mules to be at large upon the highway, and defendant is liable for any damages caused thereby. Section 4275, R. S. 1919; Section 4281, R. S. 1919; Bowles v. Prentice, 172 S.W. 429; Ferry v. Sawyer, 195 S.W. 574; Shipley v. Colclough, 81 Mich. 624; Baldwin v. Ensign, 49 Conn. 113; Bowyer v. Burlew, 3 Thomp. & C. 362; Jewett v. Gage, 55 Me. 538. (3) The fact that an animal is at large is prima-facie evidence that it is at large contrary to the terms of the statute. Holtzkemper v. Langloth, 8 Ohio Cir. Ct. 520. (4) Under instructions offered by defendant, jury found that the mules were at large with the knowledge and consent of defendant, and that defendant negligently and carelessly permitted said mules to go upon the highway (See Instructions 4, 5 and 6, App. Tr., pp. 27, 28 and 29).

DAUES, P. J. Becker and Nipper, JJ., concur.

OPINION

DAUES, P. J.

This is an action for damages growing out of the alleged injury caused to the automobile of plaintiff, the respondent here, by certain mules belonging to defendant. It is alleged that the animals were running at large in Jefferson county on September 29, 1926, in violation of the "Stock Law;" that plaintiff, by agent, was operating the automobile on a public highway in Joachim township in that county in a prudent manner and at a slow rate of speed, and that his machine was damaged by the mules of defendant, "which defendant negligently, carelessly and unlawfully permitted to run at large outside of its enclosure and upon said highway." It is alleged that the mules were on the left side of the highway and ran directly in front of the automobile of plaintiff, causing a collision in which the automobile was damaged to the extent of $ 542.45.

The answer charged contributory negligence, with a counterclaim for $ 400 for the negligent killing of the mules. The answer did not put the enactment of the Stock Law in issue.

The reply was a general denial.

There was a verdict and judgment in favor of plaintiff for $ 275, and against defendant on its counterclaim, from which defendant has duly appealed.

Plaintiff's evidence tended to prove that a young man in the employment of plaintiff on the day mentioned drove plaintiff's automobile northwardly, or on the right side of the highway, at the rate of about twenty miles an hour. He encountered a Ford truck running southwardly along the west side of the highway. Immediately in front of the truck were defendant's unattended mules, one of which ran southwardly on the left or east side of the highway, directly into plaintiff's automobile. It was nighttime and dark and foggy. Both plaintiff's automobile and the truck were lighted, and it was hardly necessary to show, though there is proof, that the mules were without artificial lights. The evidence is that they were on the wrong side of the highway. The proof is to the effect that the reasonable value of the repairs on the automobile as a result of this collision was about $ 350, and that the depreciation of the car fell $ 100, and that the difference in the value of the car before and after the accident was more than the verdict. There was no attempt made by plaintiff to prove the Stock Law was in force at that time and place and upon the theory that since it was not specifically denied that then it was not necessary for plaintiff to prove it.

Plaintiff introduced a young man named La Porte, who drove the car, and he testified as to the facts as set out in our statement. This witness was corroborated by another lad named Coleman, who was in the car with him at the time. La Porte was nineteen years of age and Coleman eighteen years at the time.

Witness Dugan, who was in the automobile business and who was an automobile mechanic, testified as to the extent of the damages, he having repaired plaintiff's car, and he said that the reasonable value of the services performed in repairing the car was $ 349; that the depreciation was $ 100, and that the automobile was worth $ 650 before the injury and $ 250 after the injury.

For the defendant, witness Eckhoff testified that he saw the mules that were not killed or crippled running upon the highway. (It seems that about three or four of them were unharmed.) This witness said that while he did not see the collision, he saw plaintiff's car immediately before that, and that the car was then going at a speed of about thirty-five to forty miles an hour.

Witness Byington, testifying for defendant, said that he lived on the property of defendant company; that he knew about the collision; that he had put the mules up; that they had never been permitted to run outside to his knowledge; that on the night in question he had placed the animals in the enclosure about dark and had fastened the gates leading to the barn lot on that evening, and that in so far as he knew no one had turned the animals out through the gates. On redirect examination, he said that after the mules had gotten out he discovered that the gate was open; in fact, that both gates were open, and that he brought the mules back that night. His son, Archie, testified to practically the...