Parker v. Cushman

• Decision Date: 21 March 1912
• Docket Number: 3,558.
• Citation: 195 F. 715
• Parties: PARKER v. CUSHMAN. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

195 F. 715

PARKER v. CUSHMAN. ^[1]

No. 3,558.

United States Court of Appeals, Eighth Circuit.

March 21, 1912

James S. Botsford (C. L. Randall and G. W. Hurd, on the brief), for plaintiff in error.

John L Wheeler (John C. Nipp, on the brief), for defendant in error.

Before HOOK and SMITH, Circuit Judges, and MARSHALL, District Judge.

SMITH Circuit Judge.

There has been maintained for some time at the southwest corner of Twelfth and Charlotte streets, in Kansas City, Mo., a place of amusement known as the 'Hippodrome.' Under a contract with the Hippodrome Amusement Company, dated October 23, 1908, Charles W. Parker installed at the northwest corner of the building opening on Twelfth street a wild animal show. Along the west side of this room were cages containing lions and on the east side were two lions and other animals. To the west of the animals on the west side was a passageway connecting with the arena, which was in the southwest part of the hall. Passing down east of the arena was a way to the Hippodrome proper.

John D Appleton, whose stage name was Capt. Cordona, and a young lady named Ernestine Rose, whose stage name was Miss La Rose were employed in connection with the exhibition of lions as trainers or exhibitors. Miss Rose, while at Kansas City, lived with the Cushmans and slept with Ella May Cushman.

December 26, 1908, Miss Cushman, wearing on her head a red hat, went to the animal show at the afternoon performance with a view to going home with Miss Rose. The latter had left word with the doorkeeper to admit her, and she was accordingly admitted and took a seat with Mrs. Appleton and her infant child. This Mrs. Appleton was the wife of John D. Appleton. They were at first seated three or four seats back from the front. Mrs. Appleton went out to talk over the telephone and on her return took her seat in the front row, where she was joined by Miss Cushman. The show closed, Miss Rose giving the last performance, and the lions were returned to their several cages. The Twelfth street entrance was closed, but Miss Cushman remained waiting for Miss Rose to come back from the dressing room. While she was waiting, the doorkeeper saw her there, but made no objection that she had not gone out with the others.

Miss Rose came down from her dressing room, and, as they must go out by way of the Hippodrome proper, Miss Cushman advanced to meet her. A man and woman also met Miss Rose near the east side of the arena and detained her by their conversation, and Miss Cushman was left standing two or three feet from the arena. At some time prior to this, but after the performance closed, Capt. Cordona had turned four lionesses back from their cages into the arena; but whether Miss Cushman knew that fact is a matter of dispute. While she was standing waiting for Miss Rose to conclude her conversation, a lioness reached through the bars of the arena and seized her by the head and seriously lacerated her. She brought suit by her next friend, she being but 15 years old at the time of the accident, for $5,000. She alleged the animals were dangerous and vicious, and Mr. Parker knew this, or would have known it in the exercise of ordinary care; that they were kept in a cage with bars that spread apart, and were weak, unsafe, and insufficient, and without a watchman to warn plaintiff of the danger thereof. Mr. Parker filed a general denial and alleged that Miss Cushman was not present as a guest or patron; that she was injured after the closing of said show; that she well knew the characteristics of the animals in question and went to the place where she received her injuries and assumed the risk of the injuries she complains of and was guilty of contributory negligence. The case was tried to a jury who found for her in the sum of $3,000 upon which judgment was rendered, and Mr. Parker sued out a writ of error. Miss Cushman will be referred to as the plaintiff and Mr. Parker as the defendant.

It has been held that while it is not unlawful for a person to keep wild beasts, though they may be such as are by nature fierce, dangerous, and irreclaimable, it is the duty of those who own and keep them to do it in such a manner as will absolutely prevent the occurrence of an injury to others through such vicious acts of the animals as they are naturally inclined to commit, and such liability exists without notice of the previous misconduct of such animals. In other words, such notice is conclusively presumed from the nature of the animal. 2 Cyc. 367; Congress Spring Co. v. Edgar, 99 U.S. 645, 25 L.Ed. 487; Gooding v. Chutes Co., 155 Cal. 620, 102 P. 819, 23 L.R.A. (N.S.) 1071, 18 Ann.Cas. 671; Hays v. Miller, 150 Ala. 621, 43 So. 818, 11 L.R.A. (N.S.) 748, 124 Am.St.Rep. 93; Parsons v. Manser, 119 Iowa, 88, 93 N.W. 86, 62 L.R.A. 132, 97 Am.St.Rep. 283.

It has been held, in actions for injuries from wild beasts and other vicious animals, the fact that the injured party is a trespasser will not preclude a recovery. Marble v. Ross, 124 Mass. 44; Conway v. Grant, 88 Ga. 40, 13 S.E. 803, 14 L.R.A. 196, 30 Am.St.Rep. 145; Melsheimer v. Sullivan, 1 Colo.App. 22, 27 P. 17; Loomis v. Terry, 17 Wend. (N.Y.) 496, 31 Am.Dec. 306. It has even been held that contributory negligence generally will not defeat a recovery. Woolf v. Chalker, 31 Conn. 130, 81 Am.Dec. 175; Smith v. Pelah, 2 Str. 1264.

'The keeping of wild animals for many purposes has come to be recognized as proper and useful; they are exhibited through the country with the public license and approval; governments and municipal corporations expend large sums in obtaining and providing for them; and the idea of legal wrong in keeping and exhibiting them is never indulged. It seems, therefore, safe to say that the liability of the owner or keeper for any injury done by them to the person or property of others must rest on the doctrine of negligence. A very high degree of care is demanded of those who have them in charge; but if, notwithstanding such care, they are enabled to commit mischief, the case should be referred to the category of accidental injuries, for which a civil action will not lie. ' Cooley on Torts (3d Ed.) 706.

In Thompson's Commentaries on the Law of Negligence (volume 1, p. 776) this language is quoted with approval, and it is said:

'Latterly, however, there seems to be a disposition upon the part of the authorities to hold the more reasonable rule that all that should be required of the keeper of such animals is that he should take that superior caution to prevent their doing mischief which their propensities in that direction justly demand of him.'

A distinction may well be drawn not only between wild and tame or domestic animals, but in dealing with animals ferae naturae between those that can be domesticated and those that cannot. In dealing with animals ferae naturae it is not customary to administer so strict a rule as to animals domesticated as with reference to those which cannot be domesticated and so have not been.

It is not necessary to pass upon the exact rule in case of a lioness, as the court below gave the law substantially as laid down by Judge Cooley and Mr. Thompson. It is sufficient to say that, however much the early rule may have been softened, it is...