Shuck v. Cook

• Decision Date: 22 February 1972
• Docket Number: No. 43811,43811
• Citation: 494 P.2d 306
• Parties: Derald E. SHUCK, Plaintiff in Error, v. Bronnie COOK and Kenneth Cook, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 306

494 P.2d 306

Derald E. SHUCK, Plaintiff in Error, v. Bronnie COOK and Kenneth Cook, Defendants in Error.

No. 43811.

Supreme Court of Oklahoma.

Feb. 22, 1972.

Syllabus by the Court

1. The Legislature of Oklahoma did not intend to protect motorists traveling upon the public highways against the hazards created by the straying of domestic animals upon such highways by the enactment of Section 1, Chapter 117, Session Laws of 1965 (4 O.S.1961, § 98, Supp. 1965) requiring the restraint of all domestic animals by the owners thereof from running at large at all times and seasons of the year.

2. Whether counsel, upon application, should be permitted or refused the privilege of using charts as a part of counsel's argument to the jury, rests in the sound discretion of the trial court. In the exercise of this discretion, the primary question for the trial court to answer is: considering the nature of the case, the issues and the evidence, what ruling will best serve the jury in the performance of its duty?

Appeal from the District Court of Dewey County; F. B. H. Spellman, Judge.

Action for damages to plaintiff's person and property resulting from the collision of an automobile driven by plaintiff and defendants' bull due to the alleged negligent conduct of defendants in permitting their bull to stray upon a public highway. Judgment for defendants. Plaintiff appeals.

D. C. Thomas, Oklahoma City, Richard E. Romang, Enid, for plaintiff in error.

Cook & O'Toole, Oklahoma City, Tom J. Ruble, Taloga, for defendants in error.

DAVISON, Vice Chief Justice.

This action for damages resulted from an accident that occurred on U. S. Highway 183 about 1.2 miles south of its intersection with U. S. Highway 60, when plaintiff in error (plaintiff in the trial court) at approximately 8:00 p.m. on September 8, 1966, driving his Oldsmobile, collided with a Black Angus bull, owned by Bronnie Cook, defendant in error (defendant in the trial court). Kenneth Cook, a son of Bronnie Cook, the alleged joint owner of the bull, is a co-defendant in error (a co-defendant in the trial court).

Reference to the parties will be made by their trial court designations.

As originally filed plaintiff's petition alleged the occurrence of the accident hereinabove described and that defendants were the owners and keepers of the bull at the time of its escape from a pasture, abutting the west side of the highway, where the collision occurred; that defendants kept a herd of cattle and a Black Angus bull in this pasture; that the collision occurred at the bottom of a draw in plaintiff's line of traffic, at a time the bull was not visible, just as plaintiff started up the incline traveling north; that the impact caused extensive damage to plaintiff's automobile and severe and painful injuries to plaintiff that are permanently disabling.

The petition as originally filed further alleged that the bull had broken out of the pasture a number of times, which was known to defendants or should have been known to them, but defendants failed to take the steps necessary to control the bull and keep him off the highway where he was a hazard to all motorists; that defendants' failure was a violation of 4 O.S.1961, § 98 (Supp.1965) which reads:

'All domestic animals shall be restrained by the owner thereof at all times and seasons of the year from running at large in the State of Oklahoma. Damages sustained by reason of such domestic animals trespassing upon lands of another shall be recovered in a manner provided by law. For the purpose of this act, domestic animals shall include cattle, horses, swine, sheep, goats, and all other animals not considered wild but shall not include domestic house pets.'

The petition also alleged unlawful conduct and negligence in defendants' failure to keep the bull off the public highway. Due to resulting deep lacerations to several parts of plaintiff's body, torn muscles, brusises, joint stiffness, brain concussion resulting in permanent brain damage, mental confusion and severe headaches, plaintiff prays for damages in the sum of $100,000.00.

For plaintiff's second, third, fourth and fifth causes of action he adopts allegations in his first cause of action and prays respectively for $25,200.00 damages for past, present and future pain and suffering; $83,600.00 damages for loss of wages and impairment of future earnings; $2,180.90 damages to his automobile and $889.93 for reasonable and necessary medical expense.

Defendants allege in their answer a general denial, contributory negligence and unavoidable accident. Plaintiff's reply was a general denial.

Before dealing with the issues related to negligence, we consider first the action of the trial court in sustaining the oral motion of defendants, made after the selection of the jury, to strike that part of plaintiff's first cause of action based upon 4 O.S.1961, § 98 (Supp.1965) quoted above and to strike the words 'unlawfully,' used twice in plaintiff's first cause of action, as descriptive of the conduct of defendants prohibited under § 98. This action of the trial court is assigned as error. Section 98 was enacted in 1965 as § 1, c. 117, Session Laws of 1965. Section 2 of c. 117 repealed what was a substantial part of the Oklahoma 'Herd Law' including 4 O.S.1961, §§ 91 through 97, 101 through 112, 114.1, 114.2, 115.1 through 115.4, 121, 122, 131, 137, 138 and 181 through 184 and all other acts or parts of acts in conflict therewith.

We agree with the trial court that § 1, c. 117, Session Laws of 1965 (4 O.S.1961, § 98) (Supp.1965) was not legislatively intended to protect persons traveling upon the public highways, including traveling motorists against the hazards created by domestic animals escaping the highways. Champlin Refining Co. v. Cooper, 184 Okl. 153, 86 P.2d 61 (1938) is an integral part of this legislative history. In Champlin, defendant's horse had wandered from defendant's premises upon U.S. Highway 75. Upon rounding a curve in the highway about 8:00 p.m., the driver of plaintiff's car suddenly came upon and ran into defendant's horse resulting in damage to plaintiff's car. Plaintiff sued defendant for damages, involving § 9006, O.S.1931, which before its repeal by Chapter 117, Session Laws of 1965, was 4 O.S.1961, § 131. This section provided in part: 'The owner of any stock or domestic animal prohibited by law, from running at large or prohibited by police regulation adopted by vote of any stock district from running at large within the district at any times shall be liable for all damages done thereby while wrongfully remaining at large upon the public highway or upon the lands of another.' A further provision granted the injured party a right to 'distrain the trespassing animal.' In reversing a judgment based upon a jury verdict for plaintiff we held: 'Considering the foregoing statute in the light of the above rule as well as the date of enacting the same, it is obvious the statute was enacted for the purpose of protecting agricultural crops from the ravages of straying domestic animals rather than motorists upon the highways.' In Merkle v. Yarbrough, Okl., 378 P.2d 333 (1963) we held the Champlin holding should not be limited to agricultural lands but should be extended to cover grazing lands. To this extent only, the holding in Champlin was 'disavowed.'

With this history of judicial interpretation before it, knowing that it was repealing substantial parts of Oklahoma Herd Law referring to the public highways, and exercising this legislative function at a time of spirited and ofttimes reckless travel upon public highways, the Oklahoma Legislature in 1965 enacted Section 1, Chapter 117, with no specific reference to public highways or the risks of motorist while traveling thereon and with specific reference only to 'damages sustained by reason of such domestic animals trespassing upon lands of another.'

Paraphrasing language from Champlin, supra, we hold 'motorists traveling upon the highways are (not) members of the class which this statute was intended to protect and the injury suffered herein the kind of injury the statute was intended to prevent.' 86 P.2d 61, 63(1). The title to Chapter 117, Session Laws of 1965, does not indicate a different intention.

Related to the legislatively intended purpose of § 1, c. 117, Session Laws of 1965, is plaintiff's assigned error that the trial court refused to give plaintiff's requested instructions Nos. 1, 2 and 3. These instructions are bottomed clearly upon the assumption that § 1, c. 117, Session Laws of 1965, was enacted for the protection of motorists traveling upon public highways within the State of Oklahoma, as well as for the protection of agricultural and grazing land owners. Obviously, under our holding delineated above the trial court did not err in refusing such instructions.

The plaintiff also assigns as error the giving of the trial court's instructions Nos. 13 and 15, as being outside the scope of the issues in this case and misleading to a lay jury. Instruction No. 13 is: 'You are further instructed that the defendants are not an insurer of the safety of persons traveling up and down the Highway in question.' The question we must answer here is: Was this instruction confined to the issues and supported by the evidence? Overstreet v. Bush, 208 Okl. 365, 256 P.2d 416. The issues tendered by the pleadings were (1) the charge against the defendants that they were guilty of common law negligence, as distinguished from statutorily prohibited conduct, in failing to prevent their bull from straying upon the public highway; (2) defendants' negligence was the proximate cause of plaintiff's injuries and resulting damages; (3) the defendants' denials of their negligence, proximate cause, injuries and resulting damages; (4) the defendants' charge that plaintiff's contributory negligence was the proximate cause of plaintiff's injuries and resulting damages. A summary of the evidence supporting...