Nixon v. Harris
| Decision Date | 03 July 1968 |
| Docket Number | No. 41381,41381 |
| Citation | 238 N.E.2d 785,15 Ohio St.2d 105 |
| Parties | , 44 O.O.2d 78 NIXON et al., Appellants, v. HARRIS, Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court
If an animal breaks into the enclosed land of another, or gains entrance into such enclosure by jumping over the fence, and there damages real or personal property of the one in possession, or injures a member of his family, the owner of the trespassing animal is liable without reference to whether or not such animal was vicious and without reference to whether such propensity was known to its owner. (Morgan v. Hudnell, 52 Ohio St. 552, 40 N.E. 716, approved and followed.)
Appellant, a minor of the age of 15 years, by his father and next friend, instituted this action in the Court of Common Pleas of Butler County to recover damages for injuries sustained when appellant was gored by appellee's cow on or before July 20, 1962. The cow, her yearling calf and two heifers, were fenced in a field owned by one Ray Arnold, awaiting the service of a bull. By some means, not explained by the evidence, the cow managed to get over the fence and into an adjacent hay and corn field owned by appellant's father. Appellant's father told him and his brother to drive the cow back into Arnold's field. This, the boys endeavored to do, but the cow disappeared into the corn field. Appellant, looking for the cow, came upon her a few feet away in the tall corn. He shouted in an effort to drive the cow into the hay field, but the cow charged suddenly toward appellant, goring him severely about the face and head.
The petition was drafted and the cause tried on the theory of strict liability in trespass. The jury returned its verdict for the appellant. Motions for a new trial and for judgment non obstante veredicto were filed and overruled.
Upon appeal, the Court of Appeals reversed the judgment of the Court of Common Pleas and entered final judgment for the appellee. Appellant perfected his appeal to this court. His motion to certify the record of the Court of Appeals was allowed, bringing the cause before this court for final disposition for the reason that matters of great general interest are involved.
Hoover, Beall & Eichel and Walter C. Beall, Cincinnati, for appellants.
Fitton, Pierce, Baden & Wynn, Paul A. Baden, Hamilton, Crabbe, Newlon, Bilger, Brown & Jones and James L. Graham, Columbus, for appellee.
Historically, the courts, the General Assembly and the common law have been sensitive to the changing social and economic pattern of Ohio, as well as elsewhere. A basic motivating force causing changes in the structure of society and the economy has been the growing population. This constantly changing status of conditions has affected agriculture in its growth, development and diversification.
On hundred and thirty-seven years ago a problem of domestic animals running at large was presented to this court in the case of Town of Marietta v. Fearing, 4 Ohio 428 (1831). Marietta adopted an ordinance imposing a fine upon any person who permitted his horse to run at large on the streets of the town. Defendant's residence was outside but adjacent to Marietta. Defendant's horse, while lawfully grazing on the highway outside of Marietta, strayed into the corporate limits of Marietta. Marietta attempted to impose a fine upon the owner of the horse. This court, in disposing of the question, laid down this principle of law in the syllabus as follows:
'Incorporated towns within this state can not subject stray animals, owned by persons not residents of such towns, to their corporation ordinances.'
One hundred and thirty-seven years ago the public use of highways in a town was subservient to their use as pasture for horses owned by nonresidents of said town.
But, by 1895, this court and the General Assembly had recognized that the growth of population and the necessities of industry required that animals be kept fenced in, rather than fenced out. The second paragraph of the syllabus in Morgan v. Hudnell, 52 Ohio St. 552, 40 N.E. 716, reads:
'That if the animal breaks into the close of another, and there damages the real or personal property of the one in possession, the owner of the trespassing animal is liable, without reference to whether or not such animal was vicious, and without reference to whether such propensity was known to the owner.'
The rule of strict liability reflected in Morgan, supra, was a natural development of the times. In Zarbaugh v. Ellinger, 99 Ohio...
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Andersen v. Two Dot Ranch, Inc., 00-67.
...v. Main, 523 A.2d 1387, 1389 (Me.1987); Johnson v. Robinson, 11 Mich.App. 707, 162 N.W.2d 161, 162-63 (1968); Nixon v. Harris, 15 Ohio St.2d 105, 238 N.E.2d 785, 786-87 (1968). In the American West, the common-law "fence in rule" was generally rejected in favor of an open range or "fence ou......
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Carver v. Ford
...Ill. 536, 143 N.E. 69 (1924).3 Bly v. McAllister, 58 Wash.2d 709, 364 P.2d 500 (1961); 4 Am.Jur.2d Animals § 49.4 Nixon v. Harris, 150 Ohio St.2d 105, 238 N.E.2d 785 (1968).5 Prosser, The Law of Torts 4th ed. 518 (1971); 4 Am.Jur.2d Animals §§ 120.5, 120.6 (1978 Supp.).6 4 Am.Jur.2d, Animal......
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Bolton v. Barkhurst
...liable for injuries proximately caused to a traveler on the highway. Plaintiff also contends that the case of Nixon v. Harris (1968), 15 Ohio St.2d 105, 238 N.E.2d 785, establishes the rule of strict liability. However, Nixon, supra, is not applicable to the present case because it did not ......
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Williams v. Goodwin
...that plaintiff had made out a prima facie case of trespass Quare clausum fregit by proof of the foregoing facts. In Nixon v. Harris (1968) 15 Ohio St.2d 105, 238 N.E.2d 785, defendant's cow crossed the fence into a field owned by plaintiff's father. When plaintiff attempted to drive her bac......