Prickett v. Farrell, 5--5261

• Court: Arkansas Supreme Court
• Writing for the Court: FOGLEMAN
• Citation: Prickett v. Farrell, 248 Ark. 996, 455 S.W.2d 74 (Ark. 1970)
• Decision Date: 15 June 1970
• Docket Number: No. 5--5261,5--5261
• Parties: Lloyd F. PRICKETT, Appellant, v. Virgle L. FARRELL, Administrator, et al., Appellees.

Page 74

455 S.W.2d 74

248 Ark. 996

Lloyd F. PRICKETT, Appellant, v. Virgle L. FARRELL, Administrator, et al., Appellees.

No. 5--5261.

Supreme Court of Arkansas.

June 15, 1970.

House, Holmes & Jewell and Barber, Henry, Thurman, McCaskill & Amsler, Little Rock, for appellant.

Wright, Lindsey & Jennings, Little Rock, and Hall, Tucker & Lovell, Benton, and McMath, Leatherman & Wood and Cockrill, Laser, McGehee, Sharp & Boswell, Little Rock, for appellees.

FOGLEMAN, Justice.

Appellees are the personal representatives of the driver and three passengers of a Plymouth automobile who died as the result of a mishap which occurred on Interstate Highway 30 in Saline County at about 11:45 p.m. on June 4, 1968. They brought wrongful death actions against appellant Lloyd F. Prickett, Prickett Dairy, Inc., E. W. Prickett, Texas Tool Traders and Eulogio B. Gonzales, Jr. Trial of the consolidated actions resulted in a judgment for appellees against Lloyd F. Prickett only, and he brings the direct appeal. As his only point for reversal, he contends that the uncontradicted evidence shows that he was guilty of no negligence which was a proximate cause of the deaths. We do not agree.

There seems little doubt that the chain of events resulting in the unfortunate deaths of four young people originated because of the presence of a brown and white spotted horse, or pony, in the lanes provided for southbound traffic on this divided, controlled-access highway. The vehicle in which appellees' decedents were riding was being driven by Bradley Maxey in a southerly direction on the highway in the lanes provided for vehicles traveling in that direction. The circumstances clearly indicate that this horse or pony was struck by this Plymouth automobile and that the automobile then careened at an angle across the median, entered the northbound traffic lanes on the opposite side and collided with a tractor-trailer owned by Texas Tool Traders and driven by Gonzales. The issues as to liability of appellant and E. W. Prickett were limited by a pretrial order, entered without objection, to the sole question whether they were guilty of negligence for violation of Ark.Stat.Ann. § 41--430 (Repl.1964). ¹ The gist of appellant's argument is that there was no substantial evidence that he was the owner of the horse or that he was guilty of any negligence in allowing it to be on the highway.

One Roy Bishop testified that he sold the pony in question to Beecher Bullock, Lloyd Prickett's father-in-law, who purchased it for the use of Prickett's son, David. Lloyd Prickett testified that Bullock had given the pony to David about two years before this occurrence, when the lad was nine years of age. Appellant admitted that the gift was accepted both by him and his son. From this time until two weeks before the collision, the pony was kept in a pasture around Lloyd Prickett's house. According to appellant, David looked after the pony for the most part, but both father and son fed and cared for it. Feed for the pony was bought by Lloyd Prickett and Bullock but not by David. Lloyd Prickett paid to have the horse shod. Appellant knew that this pony and another had escaped from the Lloyd Prickett pasture at least three times over a period of one year. The third time was on a Sunday about two weeks before the incident resulting in these deaths. When appellant returned to his home that Sunday afternoon, he saw boards off the pasture fence and immediately called his father, E. W. Prickett, to ascertain whether these poines had escaped from the pasture. E. W. Prickett replied that they had gotten out and crossed the 'freeway' and that he had put them in his own five-acre pasture on the opposite side of the highway from Lloyd's pasture. Thereafter, the ponies were kept in E. W. Prickett's pasture, but Lloyd Prickett never made any physical inspection of the fences or condition of the wire around this pasture bordering the busy highway.

In answer to inquires on cross-examination as to the extent of his control over the animal, Lloyd Prickett stated that he felt sure that he could do anything he felt like he wanted to, like selling it, and get away with it. E. W. Prickett called his son Lloyd when he found the ponies were out. Lloyd Prickett was first notified of the tragic disaster, from which the deaths of these victims arose, by his brother-in-law, who heard the collision, went to the scene and called appellant.

We agree with appellant that only the 'owner' of livestock at large upon a public highway may be held liable for damages resulting. Even though Ark.Stat.Ann. § 41--430 (Repl.1964) is a penal statute to be strictly construed in favor of one against whom it is asserted, the word 'owner' therein does not have the very narrow meaning appellant would have us give it. We have previously held that even in a statute of this nature the word 'owner' should not be construed in a technical sense, but in a popular one. See BUSH V. STATE, 128 ARK. 448, 194 S.W. 857. ² There we relied upon and quoted from a Pennsylvania case in which the statute involved required owners of certain buildings to provide fire escapes. Yet, in a suit against a tenant, who leased a building, for damages resulting from the failure to provide a fire escape, it was held that the tenant was an 'owner' in the sense of the statute. We applied that precedent in holding that a receiver of a railroad corporation, or anyone operating it came within the purview of the words 'the corporation owning a railroad' in a penal statute requiring the giving of signals by trains approaching crossings. In arriving at this conclusion, we were greatly influenced by the obvious design of the legislature in enacting that law to protect travelers against accidents that might occur at railroad crossings were the signals not given. In this case, the obvious design of the General Assembly was to afford a similar measure of protection to travelers upon our highways.

We have also said that the word 'owner' in an act subjecting an 'owner' to civil and penal consequences for intentionally or negligently permitting his animals to run at large, includes one who has the right of immediate possession and control, and to exclude the one holding absolute title but not having such rights at the critical time. Fraser v. Hawkins, 137 Ark. 214, 208 S.W. 296. We once recognized that circumstances might exist under which a parent might exercise a certain degree of control over a slave given his child. Dodd v. McCraw, 8 Ark. 83, 46 Am.Dec. 301. Certainly we should not say as a matter of law that a parent may not, under any circumstances, have any control over an animal given his minor child.

When we consider the legislative purpose in enacting the statute in question here, we think it clear that the word 'owner' therein was intended to encompass a father who actually had the right of control of an animal given to his minor son. Even though we doubt appellant's legal authority to sell his son's pony without court authorization, we find the evidence stated above sufficient to pose to the jury the question whether appellant was an owner of the pony in the sense that he had a right of dominion and control over it.

Appellant also argues that, even though this pony was on the highway outside the enclosure in which he was kept, there was no evidence of negligence on his part. Of course, violation of the statute is itself evidence of negligence to be considered along with other facts and circumstances. Rogers v. Stillman, 223 Ark. 779, 268 S.W.2d 614. It then becomes necessary to determine whether there was substantial evidence that appellant allowed the pony to run at large on the highway. We find such evidence.

Appellant knew that this pony and another kept with him had escaped three times. On at least one of these occasions it seemed to him that the animals had kicked boards off the fence enclosing the pasture where they were then kept. After these ponies were taken up by E. W. Prickett, appellant made no effort to determine whether the fences and gates enclosing the pasture where they were kept thereafter were adequate to confine them. Trooper Ronnie Burk, who arrived at the scene soon after the occurrence, investigated the enclosures. Looking along the fence of the pasture where the Prickett boy's pony was kept, he saw fresh manure at a point where the fence line crossed a creek. He also found fresh hoof marks both inside and outside the fence near the creek and fence. The bottom strand of this barbed wire fence struck the officer at height two inches below his belt. If he had stepped into the creek to make his measurement the wire would have struck a higher point on his body. He described the wire as being extremely loose and without supporting posts for quite a distance at the creek. He found the first post west of the creek either broken off or rotted off at the ground, so that it did not keep the wire taut even though the wire was nailed to it. He described the whole fence line as having been in poor...