Scherffius v. Orr

• Decision Date: 06 May 1969
• Docket Number: No. 8848,8848
• Citation: 442 S.W.2d 120
• Parties: Bill SCHERFFIUS, Plaintiff, and Connie Lee Scherffius, by Next Friend, Bill Scherffius, Plaintiff-Respondent, v. Thomas ORR, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 120

442 S.W.2d 120

Bill SCHERFFIUS, Plaintiff and Connie Lee Scherffius, by Next Friend, Bill Scherffius Plaintiff-Respondent, v. Thomas ORR, Defendant-Appellant.

No. 8848.

Springfield Court of Appeals, Missouri.

May 6, 1969.

Motion for Rehearing or To Transfer Denied May 26, 1969.

Application to Transfer Denied July 14, 1969.

Albert C. Lowes, Kenneth L. Waldron, Buerkle & Lowes, Jackson, for appellant.

Robert A. Dempster, Gene R. Yokley, Sikeston, for respondent.

TITUS, Judge.

Connie Lee Scherffius obtained a $1,500 verdict-judgment against defendant in the Circuit Court of Stoddard County on Count I of an action which is the descendant of a one-car accident that occurred on Stoddard County Route AB near 5 p.m. on Sunday, June 25, 1967. A verdict for defendant was returned on Count II of the petition brought by plaintiff Bill Scherffius. The judgment entered on Count II in accordance with the verdict has become final and does not concern us here. Connie (hereinafter called the plaintiff) contends the casualty and her damages resulted from defendant's violation of the so-called Stock Law, V.A.M.S. § 270.010, RSMo 1959. On this appeal defendant asseverates we should either (1) reverse the judgment outright because plaintiff did not make a submissible case and was guilty of contributory negligence as a matter of law, or (2) award him a new trial because the trial court erroneously received improper testimony, permitted unauthorized argument by plaintiff's counsel, and committed prejudicial error by the giving and refusing of certain instructions.

Route AB, an east-west thoroughfare, is a two-laned rolling blacktop with accompanying berms, which was dry and straight at the time and in the area of our concern. On the date of the occurrence Fred Harper was a tenant on a farm situate on the south side of the highway. A bull, 26 cows and 22 calves were also in residence. Plaintiff's father and brother testified that defendant had declared, 'I own the farm. * * * These are my cattle (and) the black cows and calves are mine.' To the contrary, defendant told the jury he and his son owned the farm 'fifty-fifty' together with the bull, 19 cows and 17 calves, all of which were black save three. Tenant Harper laid claim to seven cows and five calves. One of Harper's calves was pure black and two of them were black with 'a little white on them.' All of the cattle were kept in a pasture that extended east and west from and south behind the farm house and outbuildings. The farm yard was separated from the pasture by a woven wire fence with a single strand of barbed wire on top. That portion of the pasture west of the house along the south side of Route AB was enclosed by either a three or a four strand barbed wire fence. According to Harper, his cattle 'were east of the house' on the day of the accident. There was testimony a Mr. Ward 'that owns the farm immediately to the west, on the south of the (defendant's) farm (has) got a bunch of black cows and calves and steers.' During the early morning of the casualty date, or late the night before, it had rained 'possibly an inch or inch and a quarter * * * a good muddy rain.'

The 17-year-old plaintiff, who normally drives 'around 60 miles an hour,' was alone while operating her father's automobile eastward on Route AB. It was daylight and the weather was clear. An unspecified but considerable distance west of the Harper residence plaintiff topped a rise and, so she says, espied a black calf 'standing in the middle of the road * * * right at the bottom of the hill * * * facing me. * * * I immediately applied my brakes (but) realized I couldn't stop in time, so I swerved (to the left) to miss it (and) the car went down in the ditch and through the fence and landed out in the open field * * * off the road on the north side.' The vehicle had trailed 234 feet of skidmarks on the pavement and went 36 feet off the road before it finally came to rest.

Immediately prior to the event Harper said he had driven east over Route AB to reach his home and had observed no cattle outside the pasture. About the time 'I went in the house I heard a car coming, and * * * I started back out of the house. * * * (W)henever I come out of the house I heard something screak, and I guess it was the tires * * * and directly I heard a bump.' Harper walked to the highway and turned west, but 'I didn't get but a little ways till the girl * * * just popped right up in the road * * * she come running toward me (saying) 'A cow, a cow', (and) I said, 'No, sis, I don't see how it could have been a cow. * * * It could have been a calf.' (And although) I looked down this way, up that way and out that way * * * I never seen nothing nowhere.' When asked why her utterances to Harper related to 'a cow,' plaintiff explained, 'Well, to me, I call a calf a cow, that's just what I call it.'

Approximately a mile and a half before reaching the accident scene plaintiff had overtaken and passed the Holford family automobile, which was being operated 30 to 40 miles her hour. This vehicle and another driven by Charles Edwards arrived at the casualty site just 'split seconds' apart, and were stopped in time for the occupants to see plaintiff walking 'up the bank' on the north side of the highway and to hear her variously exclaim to Harper 'something about a cow' or 'a calf' or 'that there was a calf in the road.' Shortly thereafter the Messer family arrived and took plaintiff home. Except for the plaintiff, no one saw a calf or other animal upon the highway, along the shoulders, in the ditches or outside the pasture at any time. Edwards testified that soon after his arrival he had noticed 'some cattle in the pasture * * * approximately 150, 200 feet * * * to the south' of the road, and had discovered fresh calf tracks in the ditch along the south side of the pavement 'close to where' plaintiff had gone off the highway.

The morning after the accident defendant and his son met Harper and plaintiff's father and brother at the farm to discuss the happening. Defendant recalled someone 'told me about a calf being in the road * * * (a)nd I said, 'Well, we ought to look for some more clues'.' Plaintiff's father and brother recounted that defendant also told them, 'I believe I can take you where my calf got out,' or 'I think I know where my calf got out.' Defendant did not categorically deny these statements, and testified, 'I told them there had been a calf out, I don't know whether I specifically said it was mine or just one of the calves.' The gathering then went on an inspection tour. Concerning the yard or woven wire fence to the rear of the farm house, plaintiff's father said, 'We found the fence down.' Plaintiff's brother related the fence was 'mashed down' and there was an 'opening in the fence * * * two, two and a half feet high * * * and a good two feet wide.' Defendant denied this was so but admitted 'that fence ain't in as good a shape as the one out on the road, but it ain't in too bad a shape.' Everyone was in agreement that calf tracks were in the yard and in the ditch along the south side of the road, and that the tracks had been made after the rain. Plaintiff's brother said the tracks commenced inside the pasture back of the house and led 'up to this hole (in the woven wire fence) and then there was tracks on the outside of the fence, which would be inside the yard, and the tracks went right on through the yard out to the road.' Plaintiff's witnesses followed the calf's spoor (consisting of muddy hoofprints and droppings) westward from the yard and onto the pavement and south highway shoulder. The tracks, they said, went into the south ditch, to and through the south fence (where they found a loose strand of wire), and back into the pasture opposite the place plaintiff had driven off the north side of the road. At this place plaintiff's witnesses also claimed they found short black calf hairs caught on a fence barb. Defendant's witnesses denied there was any evidence the calf had been on the pavement or south shoulder, but did confirm there were calf tracks in the south ditch to 'just west of where the car run off the road on the north side, and it got into the weeds and grass and we lost our tracks right there.' Defendant said the black hair found on the barb was not short but long, 'where a cow switched her tail,' and that the road fence was tight with only 'one steeple * * * out of a fence post.' This latter assertion was designed to contradict the testimony of plaintiff's father that the road 'fence was loose, a staple was out in three different posts there at that one place.'

For our purposes, § 270.010, supra, provides: 'It shall be unlawful for the owner of any * * * cattle * * * to permit the same to run at large outside the enclosure of the owner of such stock, and if any of the species of domestic animals aforesaid be found running at large, outside the enclosure of the owner, * * * the owner shall pay * * * all persons damaged by reason of such animals running at large, the actual damages sustained by him or them; provided, that said owner shall not be responsible for any accident on a public road or highway if he establishes the fact that the said animal or animals were outside the enclosure through no fault or negligence of the owner.' It has been said that in an action founded on this statute, the jury may infer negligence on the part of the owner from the fact the animal was on the highway at the time of the accident (although such an inference is not conclusive), and the burden is upon the owner to prove his animal was outside the enclosure through no fault or negligence on his part. In this case it was stipulated the Stock Law was effective in Stoddard County at the time of the casualty. Therefore, a verdict for the plaintiff was permissible if plaintiff tendered competent evidence that defendant was the owner of the black calf, that defendant had permitted it to run at large outside...