Vangilder v. Faulk

• Decision Date: 22 April 1968
• Docket Number: No. 5--4550,5--4550
• Citation: 244 Ark. 688,426 S.W.2d 821
• Parties: Aubrey VANGILDER, Appellant, v. Paul FAULK, Appellee.
• Court: Arkansas Supreme Court

Page 821

426 S.W.2d 821

244 Ark. 688

Aubrey VANGILDER, Appellant, v. Paul FAULK, Appellee.

No. 5--4550.

Supreme Court of Arkansas.

April 22, 1968.

Kirsch, Cathey & Brown, Paragould, for appellant.

Barrett, Wheatley, Smith & Deacon, Jonesboro, for appellee.

FOGLEMAN, Justice.

This appeal is from a judgment based upon a jury verdict denying appellant a recovery from appellee for the death of a Hereford bull owned by appellant. The parties are adjoining landowners whose pastures are separated by a partnership fence. Evidence on behalf of appellant tended to show that his bull suffered injuries on November 14th from an encounter with appellee's Angus bull in appellant's pasture. Appellee was notified of the occurrence by appellant's wife. He caused his employee to remove his bull from appellant's pasture and to return it to appellee's premises where it was in a holding corral for less than half a day. Thereafter, the bull was returned to appellee's pasture. Appellee took no action designed to prevent another trespass by his bull into appellant's pasture, where appellant kept not only his bull but 20 to 25 cows. Appellee did cause an employee to walk and inspect the division fence, which was found to be intact. Appellee stated that he knew that a bull which escaped his enclosure once had a tendency to make other escape attempts; that when strange bulls meet they can be expected to fight, particularly in the presence of the female of the species; and that when bulls fight there is danger that injury will occur.

Appellee's bull escaped into appellant's pasture again on November 17th. Evidence indicates that another fight took place on that occasion. Appellant's bull died on November 25th as a result of injuries which appellant contends were inflicted in the second fight.

The first point relied on for reversal is that there was error in the court's instructions in that the basis of appellee's liability was limited to negligence in permitting his bull to run at large. The point is properly preserved in appellant's objection to the instruction given and by the rejection of his offer of instructions which would have submitted the case to the jury on the alternate bases of (1) strict liability for damage done by a trespassing animal and (2) liability based on appellee's knowledge of the dangerous propensities of his bull.

Appellant first argues that our cases, such as Little Rock & Ft. S. Ry. Co. v. Finley, 37 Ark. 562, and St. Louis, I.M. & S. Ry. Co. v. Newman, 94 Ark. 458, 127 S.W. 735, 28 L.R.A.,N.S., 83, rejecting the rule of strict liability of an owner for the acts of his trespassing animals should have no application here. This argument is based upon the contention that the properties of these parties were located in a stock law district created under the provisions of Act 156 of 1915. The trial court took judicial notice of the existence of this district. We agree that the rule stated in the above cases is confined to situations where the owner permits his animals to run at large on unenclosed lands of another, and that the rule may well be changed by laws requiring an owner to keep his animals within his own enclosure.

We do not agree with appellee's contention that the 1915 stock law has no application to this case by reason of its repeal by Act 368 of 1947. We have already recognized that stock law districts created under Act 156 remain in existence in spite of the specific language of Act 368 which states that it repeals sections relating to the creation of such districts and to the legal effect of adoption of the district by the electorate. In Goggin v. Ratchford, 217 Ark. 180, 229 S.W.2d 130, it was held that annexation of a single township to a stock law district to which Act 368 was applicable could only be made to districts already in existence when this act was passed. This holding recognized, without stating, the rule that where both the prior and subsequent acts legislate upon the same subject and the subsequent act re-enacts substantial portions of the original act but either adds, eliminates or modifies provisions of the original act, the subsequent act shall be treated as amendatory only in spite of language expressly repealing the prior act. Bear Lake & River Waterworks & Irrigation Co. v. Garland, 164 U.S. 1, 17 S.Ct. 7, 41 L.Ed. 327 (1896); Lamb v. Powder River Live Stock Co., 132 F. 434, 67 L.R.A. 558 (8th Cir. 1904).

A very closely parallel application of the rule is found in Petition of Orange County Water District, 138 Cal.App.2d 518, 292 P.2d 927 (1956). There the contention was made that the district created by a 1933 act was superseded by a completely new district of the same name created by a 1953 act. The basis for this contention was the repeal of § 1 of the 1933 Act by the 1953 Act. It was held that this contention was unsound because the re-enacted portion of the repealed act continued in force without interruption even though the new act provided for different boundaries, different directors and different purposes. Here the re-enactment of substantial portions of the 1915 Act neutralized the repeal, and the 1947 Act should be considered as amendatory of the 1915 Act. The stock law remains in effect as amended by the later act. This appears to be the majority rule. Crawford, Statutory Construction, § 322, p. 657. See 77 A.L.R.2d 357. It is consistent with the holding of this court on the effect of the repeal of our first general comparative engligence statute. Chism v. Phelps, 228 Ark. 936, 311 S.W.2d 297, 77 A.L.R.2d 329.

The doctrine of absolute liability was applied in Pool v. Clark, 207 Ark. 635, 182 S.W.2d 217. That case is not authority requiring the application of the doctrine here, however, because the stock law involved there absolutely prohibited the running at large of certain animals. Absolute liability of the owner was there predicated upon the statute's making the running at large of stock unlawful. See Act 103 of 1907, as amended by Act 273 of 1909. The statute applicable here does not contain such an absolute prohibition. It provides that it shall be unlawful for an owner to permit his animals to run at large outside the owner's enclosure. See Act 156 of 1915 and Act 368 of 1947. We have held that the owner is subject to the consequences of such a statute only when he intentionally or negligently permits his animals to run at large. Favre v. Medlock, 212 Ark. 911, 208 S.W.2d 439. Therefore, the doctrine of strict liability cannot be applied for the reason urged.

Appellant's next argument is that the case should have been submitted to the jury only on the questions of proximate cause and measure of damages because appellee was apprised of the occurrence of November 14, 1966. The evidence was sufficient to raise an issue of fact as to appellee's liability for keeping and failing to restrain an animal known by him to be possessed of vicious and dangerous qualities. Holt v. Leslie, 116 Ark. 433, 173 S.W. 191; Field v. Viraldo, 141 Ark. 32, 216 S.W. 8; McIntyre v. Prater, 189 Ark. 596, 74 S.W.2d 639. Appellant offered his requested instruction No. 1 that would have submitted these issues, but the instruction was defective in that it would have permitted a verdict for appellant if appellant's bull died as a result of either fight. There is no evidence upon which scienter could have been held to exist as a matter of law on the occasion of the first fight, in spite of appellee's admissions. Testimony of a veterinarian called as a witness by appellant might be construed to mean that the death might have resulted from the first fight. This instruction would have also found appellee to have had sufficient knowledge of the bull's propensities after the first encounter to invoke strict liability. The testimony here is not sufficiently clear to eliminate a...