Taft v. Taft

• Decision Date: 25 June 1993
• Docket Number: No. A93A1159,A93A1159
• Citation: 433 S.E.2d 667,209 Ga.App. 499
• Parties: TAFT v. TAFT.
• Court: Georgia Court of Appeals

Page 667

433 S.E.2d 667

209 Ga.App. 499

TAFT v. TAFT.

No. A93A1159.

Court of Appeals of Georgia.

June 25, 1993.

Reconsiderations Denied July 14, 1993.

Certiorari Denied Nov. 5, 1993.

Dillard, Bower & East, Terry A. Dillard, Bryant H. Bower, Jr., Joseph E. East, Waycross, for appellant.

Evans & Brantley, William V. Evans, Johnny W. Brantley, Douglas, for appellee.

BIRDSONG, Presiding Judge.

Appellant/defendant Wilburn Taft appeals the $130,000 judgment awarded to his adult son, appellee/plaintiff Vance Taft. Appellee brought suit for injuries sustained when attacked by appellant's five- to nine-month-old, 600 pound bull when attempting to corral it for market. Appellee was a business invitee on his father's premises at the time, helping his father load the bull and hogs for market. Held:

1. Bulls generally are strong and some bulls are vicious notwithstanding their classification as domestic (farm) animals. Nevertheless, it cannot "be said as a matter of law, or that it is judicially known, that bulls, as a class, are dangerous." Lander v. Shannon, 148 Wash. 93, 268 P. 145, 147 (1928). In Duren v. Kunkel, 814 S.W.2d 935, 937-938(1) (SC Mo., Banc 1991), citing Restatement (Second) of Torts, § 509, Comment e (1977), it was concluded: " 'Bulls are more dangerous than cows and steers; stallions are more dangerous than mares or geldings; rams are more dangerous than ewes and lambs. However, these animals have been kept for stud purposes from time immemorial so that the particular danger involved in their dangerous tendencies has become a normal incident of civilized life ... (T)he virility which makes them dangerous is necessary for their usefulness in performing their function in the socially essential breeding of livestock, (and) justifies the risk involved in their keeping. Therefore the law has not regarded bulls, stallions and rams as being abnormally dangerous animals.' "

This pragmatic legal approach, acknowledging the facts of life of animal husbandry, has been recognized tacitly in construing OCGA § 51-2-7 (formerly Code Ann. § 105-110). In this state, "the owner of a vicious or dangerous animal, who allows the same to go at liberty, is liable to one who sustains injury as a result of the vicious or dangerous tendency of the animal only in the event the owner knows of its vicious or dangerous character. If he does not know this, he will not be liable for an injury which is not the usual and natural consequence to be anticipated from allowing an ordinary animal of that kind to go at large." (Citations, emphasis and punctuation omitted.) Flowers v. Flowers, 118 Ga.App. 85(2), 162 S.E.2d 818.

Appellee testified he could have closed the gate in time to prevent the bull from running out if appellant had fastened it like it was fastened that morning. Generally, except in clear and palpable cases, questions of proximate cause, viciousness of the animal, assumption of risk, superior or equal knowledge, contributory negligence, and negligence of the plaintiff are questions for the jury. Compare Sutton v. Sutton, 145 Ga.App. 22, 243 S.E.2d 310 and Van Harlengen v. Bearse, 26 Ga.App. 473(2), 106 S.E. 306 with McNish v. Gilbert, 184 Ga.App. 234, 361 S.E.2d 231.

2. Appellant asserts the trial court erred in failing to charge the jury on the definition and elements of proximate causation. Review of the record reveals that the trial court failed to define proximate cause or to instruct adequately the...