Peterson v. Conlan

• Decision Date: 07 January 1909
• Citation: 18 N.D. 205,119 N.W. 367
• Parties: PETERSON v. CONLAN et al.
• Court: North Dakota Supreme Court

18 N.D. 205

119 N.W. 367

PETERSON

v.CONLAN et al.

Supreme Court of North Dakota.

Jan. 7, 1909.

Syllabus by the Court.

Action to recover for personal injuries inflicted upon plaintiff by an alleged vicious bull or stag, which it is claimed was the property of appellant, and which was negligently suffered and permitted to escape from its inclosure and to trespass upon the land where the injuries were inflicted.

Held, that the evidence was sufficient to require the issue as to appellant's ownership of the offending animal to be submitted to the jury, and, the jury having by the verdict found such issue in plaintiff's favor, the same will not be disturbed by this court.

The complaint was apparently framed to embrace the following alleged grounds or theories of recovery: First, that the animal was vicious, and was known to be vicious by its owner, and that he kept and harbored the same in such a negligent manner as to permit its escape from his inclosure and to inflict the injury complained of. Second, that the animal was trespassing at the time of the injury. Hence its owner is liable for any damage done by it. Third, negligence of the owner in permitting the animal to thus escape. The trial court submitted the issues to the jury on the first two theories only.

Held, conceding, without deciding, the evidence of the known viciousness of the animal to be sufficient to require its submission to the jury, that a new trial must be ordered because of errors hereinafter mentioned in the instructions relative to the second ground or theory above stated; it being impossible to determine on which theory the verdict was rendered.

Plaintiff, not being the owner or entitled to the possession of the real property on which the animal was trespassing at the time of inflicting the injury, cannot recover as for a trespass, and the instructions to the jury relative to this phase of the case constitute reversible error.

Such instructions were erroneous, for the further reason that they, in effect, amounted to a peremptory charge to find for plaintiff, provided the jury found appellant to be the owner of the animal, regardless of the question of appellant's negligence, and also without regard to whether the particular injury complained of was proximately caused by such trespass. Section 6582, Rev. Codes 1905, restricts a recovery in such cases to damages proximately caused by the trespass.

The recovery cannot be sustained on the third ground named because the case was not tried, nor the jury instructed, on such theory. Neither, for the same reason, can the recovery be sustained upon the theory that there is a statutory liability resting on defendant under sections 9405, 9408, Rev. Codes 1905, as contended for by respondent.

Appeal from District Court, Pembina County; Kneeshaw, Judge.

Action by Bjarni Peterson against William and Christopher Conlan. From a judgment for plaintiff, William Conlan appeals. Reversed.Bangs, Cooley & Hamilton, for appellant. M. Brynjolfson and Jeff M. Myers, for respondent.

FISK, J.

Plaintiff had judgment in the court below for the sum of $1,200, and costs, and this appeal is from such judgment, and from an order denying a motion for a new trial.

The action was brought against the appellant and his son, and plaintiff's cause of action, as alleged in the complaint, is, in substance, as follows: That on September 25, 1904, defendants were the owners of a certain vicious bull or stag, well knowing the said animal to be vicious and dangerous to mankind, and they did willfully and wrongfully keep and harbor said animal, and wrongfully and negligently permitted the same to run at large and trespass upon the lands of plaintiff; that on said date, and while said animal was thus trespassing upon plaintiff's lands, it charged upon and gored the plaintiff with its horns, inflicting grievous bodily injury, to his damage in the sum of $3,000. The answer amounts to a general denial. The complaint was apparently drawn to embrace several grounds or theories of recovery. First, the ground or theory that defendants are liable because of the fact that the animal was vicious and known to be such by defendants, and that they kept and harbored the same in such a negligent manner as to permit the same to escape from defendants' inclosure and inflict the injury complained of; second, upon the ground or theory that the injury was inflicted while the animal was trespassing upon plaintiff's land; and, third, that defendant was negligent in permitting the animal to escape from its inclosure and to trespass upon the land of plaintiff and his neighbor where the injury was inflicted.

As stated by appellant's counsel, to sustain a recovery upon the first ground, it must appear, first, that appellant was the owner of the animal at the date of the injury; second, that such animal was vicious; and, third, that he was known by the appellantto be vicious. It is appellant's contention that the proof is insufficient to show his ownership of the animal at the date of the injury, and hence that under no theory of the case can the recovery be sustained. The appellant admits his ownership of the animal from the time of its birth until the spring of 1904, but he swore that at said time he sold the same to his son and codefendant, Chris. Conlan, and this testimony is corroborated by that of the son. Opposed to this is the testimony of the witness Gudman, a butcher at Cavalier, who testified that he purchased the animal from appellant shortly after the injury, and he details a certain conversation with appellant prior to that time, and in the early part of September, in which appellant said he had a steer and a cow he wanted to sell; that he wanted to get rid of the stag because he was acting a little cross, and he had trouble to keep him in the fence. After the injury, and in the latter part of September, appellant asked witness if he could not take that steer from him, saying, “It wasn't his steer, but it was Chris. Conlan's, but he wanted to sell him. He was tied up in the barn, and he had to sell him. * * * He said at that time that it wasn't his steer.” It seems to be conceded, at least appellant does not deny the fact, that the animal which inflicted the injury complained of is the identical animal which was thereafter sold to Gudman; and the jury by the verdict, and the trial judge in denying the motion for a new trial, reached the conclusion, after hearing the testimony and observing the witnesses upon the stand, that appellant was, in fact, the owner of the animal at the time it inflicted the injuries aforesaid. While, as argued by appellant's counsel, it is possible to harmonize the testimony of the witness Gudman with that of the appellant and his son, still we think the jury was not bound to do so, but on the contrary was justified in construing it as sufficient proof of an admission made by appellant contrary to his sworn testimony; and, when thus construed, we think it created a substantial conflict in the testimony upon the issue regarding appellant's ownership of the animal at the date of the injury. Hence the finding of the jury upon this issue will not be disturbed by this court. Whether the evidence is sufficient upon which to sustain the recovery upon the first ground or theory above stated it is unnecessary to determine. The only proof in the record tending to show that the animal was vicious, and that appellant had knowledge thereof, is the appellant's admission, testified to by the witness Gudman, that the animal “was acting a little cross, and he had trouble to keep him in the fence.” It is not contended by respondents' counsel that this was sufficient proof that the animal was vicious, and that appellant had knowledge thereof; nor do they rely upon any such theory of the case to sustain the verdict.

Respondents' counsel seek to sustain the judgment upon either one of the following grounds: (1) That the injury was inflicted while the animal was trespassing upon plaintiff's land, and hence plaintiff may recover for the injury as aggravated damages growing out of such trespass; or (2) that the animal was a bull, and was permitted to run at large, contrary to the provisions of section 9405, Rev. Codes 1905, and that defendant is liable under section 9408, Rev. Codes 1905, for the damages caused to plaintiff by such injury. It is appellant's contention in brief that trespass will not lie, for the reason that the injury was not inflicted upon plaintiff's land, but was inflicted upon the land of plaintiff's neighbor, a few rods from the dividing line between plaintiff's and his neighbor's land. In other words, he contends that “the particular injury suffered by the plaintiff will not support an action, unless it be considered as a part of, in connection with, and in aggravation of, a trespass; and, if plaintiff was not in possession of the lands upon which the trespass was committed, there was, as to him, no trespass of which the personal injuries were an aggravation.” He also contends that the recovery cannot be sustained under the facts upon any theory of law.

The learned trial court submitted the case to the jury under instructions which recognized two theories of recovery. First, upon the theory of the known viciousness of the animal; and second, upon the theory of defendant's liability if the animal was a...