Sheppard v. Beck

• Decision Date: 20 October 1977
• Docket Number: No. 17895,17895
• Citation: 557 S.W.2d 578
• Parties: Frederick Gene SHEPPARD et al., Appellants, v. John BECK et al., Appellees.
• Court: Texas Court of Appeals

Page 578

557 S.W.2d 578

Frederick Gene SHEPPARD et al., Appellants, v. John BECK et al., Appellees.

No. 17895.

Court of Civil Appeals of Texas, Fort Worth.

Oct. 20, 1977.

Rehearing Denied Nov. 17, 1977.

Mock & Fleniken, and William J. Fleniken, Jr., Fort Worth, for appellants.

Heard L. Floore, and W. Wallace Brady, Fort Worth, for appellee John Beck.

Touchstone, Bernays & Johnston, and Webber W. Beall, Jr., Dallas, for appellee Leonard Boyd.

OPINION

MASSEY, Chief Justice.

Suit was for common law damages by the Sheppards because of personal injury and property damage sustained as a result of nighttime vehicular collision with a horse loose on a State Highway. The horse was the property of defendant John Beck and was being stabled on the premises of defendant Leonard Boyd.

At the conclusion of the trial the case was withdrawn from the jury with take nothing judgment rendered by the court in favor of both defendants. The Sheppards appealed.

The take nothing judgment in favor of defendant Boyd is affirmed. Judgment in favor of the defendant Beck is reversed and remanded for a new trial.

Location where the collision of the Sheppard's automobile with Beck's horse occurred is on U.S. Highway 377 immediately south of the City of Denton. Nearby is the 30 acres of land belonging to defendant Boyd, adjacent to the highway on its west side. There is property adjoining the 30 acres which is under lease to Boyd, but the amount is not stated in the evidence. There is absence of description of Boyd's premises, i. e., whether wooded or cleared (save for some trees which are shown by a partial photograph), and whether generally flat or otherwise.

Boyd provided stables for some six or seven horses belonging to others on his property, including the horse "Duke", which he had earlier sold to Beck prior to the collision. While charging some other owners of horses, Boyd did not charge Beck for stabling "Duke". He was accustomed to expect and receive Beck's aid in maintenance of his premises.

It is undisputed that Duke escaped therefrom on the day of the collision. Beck, who daily went to the premises to feed his horse, and perhaps ride, went to feed Duke in the late afternoon. Duke was not at the stables, and was thought to be in one of the connecting pastures in which horses grazed. Some other horse owners were present and Beck asked one who was his friend to "run him up" out of the pasture to the stables so that he could be fed. Beck waited while the friend rode out and until he returned with several animals he had "run up" on the return trip. Beck was informed by the friend that he had not seen Duke. Clearly there was the incorrect assumption that somehow the friend had "missed" Duke, plus the assumption that he was still in the pasture. Beck, not desiring to remain, obtained the friend's assurance that he would "chase him on up" to the stables and feed him. Beck left without making any search.

Shortly before 8:00 P.M. (October 17, 1972) at a point near the Boyd premises, Mrs. Sheppard collided with Duke on Highway 377. Incident to the collision she sustained personal injuries. Her daughter was also injured. The Sheppard automobile was wrecked and Duke was killed.

Boyd, having within the hour been informed that there had been an accident, went to the site and observed what had occurred. Immediately he conducted an inspection of the condition of his gates and fences, finding nothing broken and no defect. The following day he made a daylight inspection, finding no defect in the facilities to which there was usual resort in confining the horses upon his premises. These were facts to which Boyd gave his testimony.

With presumptions proper to be made, we have concluded that under the Sheppards' pleadings and proof they made out a prima facie case at common law entitling them to have their case against Beck submitted to the jury. To do this is to sustain their Point of Error No. 10 based upon the contention that "there was evidence to go to the jury concerning the Appellees' failure to keep a proper lookout with regard to the horse in question". There would not be the same right as applied to their case against Boyd, who had no knowledge that Duke was missing from his premises until after the collision had occurred.

The presumptions aforementioned would be that the premises from which Beck's friend had attempted to "run up" Duke were of open character and on generally level land; i. e., premises of a nature where if the horse was still safely contained thereon he should have been observed. The record...