White v. Leeder

• Decision Date: 01 June 1989
• Docket Number: No. 87-1628,87-1628
• Citation: 149 Wis.2d 948,440 N.W.2d 557
• Parties: Kevin L. WHITE and Jill L. White, Plaintiffs-Respondents-Petitioners, v. Franklin LEEDER, Defendant, Threshermen's Mutual Ins. Co., Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 557

440 N.W.2d 557

149 Wis.2d 948

Kevin L. WHITE and Jill L. White, Plaintiffs-Respondents-Petitioners, v. Franklin LEEDER, Defendant, Threshermen's Mutual Ins. Co., Defendant-Appellant.

No. 87-1628.

Supreme Court of Wisconsin.

Argued March 1, 1989.

Decided June 1, 1989.

James A. Drill, argued, Lisa M. Drill, and Doar, Drill & Skow, S.C., on briefs, New Richmond, for plaintiffs-respondents-petitioners.

Richard E. Rosenberg, argued, Nowlan & Mouat, on brief, Janesville, for defendant-appellant.

BABLITCH, Justice.

Kevin White (White) brought this negligence action against Franklin Leeder (Leeder), and his insurer, Threshermen's Ins. Co. (Threshermen's), to recover damages for injuries allegedly caused by a bull owned by Leeder. The primary issue on review is whether the trial court erred in giving Wisconsin Civil Jury Instruction 1391, relating to Leeder's duty to use ordinary care to restrain and control the animal as necessary to prevent injury to others. We conclude that Wisconsin Civil Jury Instruction 1391 is essentially designed to set forth the duty of the person who has control over the animal. The trial record supports the trial judge's conclusion that Leeder, the owner of the bull, had control over the bull. Accordingly, the trial court did not abuse its discretion in giving the instruction. We therefore reverse the decision of the court of appeals. 144 Wis.2d 684, 424 N.W.2d 722 (1988).

White was hired by Leeder on May 21, 1982, to be a herdsman on one of Leeder's two dairy farms. White was to maintain the entire dairy operation on one farm, as well as work in the fields when time permitted. Leeder's other farm was operated by his son, Steve. Leeder did not reside on either property, but directed and supervised the farm operations on a daily basis.

White's duties included milking 50 cows twice a day in a stanchion barn. Because the barn had only 48 stanchions, two cows had to be left outside during the milking until stanchions became available.

Leeder owned a bull that was kept on the farm for breeding purposes. The bull was free to roam with the cows anywhere in the barnyard, including a "dry barn" which had no equipment or materials in it.

On April 2, 1983, White brought 48 cows into the barn for their morning milking. After stanchions became available, White went outside to bring the other two cows in. He found the two cows lying on the floor of the dry barn with the bull between them. Upon noticing White, the cows arose and began walking toward the milking barn. While White was watching the cows exit the dry barn, the bull rushed him and knocked him to the ground. White testified that he could not remember if he had been watching the bull prior to being struck. When White got up and attempted to back out of the barn, the bull came at him again and butted him in the stomach, carrying him ten to fifteen feet into a pile of manure. White allegedly suffered injuries as a result of this incident.

At trial, witnesses for both parties testified that bulls are dangerous and unpredictable. There was no evidence presented that this bull had attacked anyone prior to this incident, and in fact White testified that the bull had not presented any particular problems during the ten months the bull had been on the farm. However, Jill White testified that when she and the children were out in the yard, the bull would come to the closest point along the fence and bellow and paw the earth. She testified that she communicated concerns in this regard to Leeder.

There was a dispute at trial as to whether Leeder's bull had a ring in its nose, and what effect such a ring would have on the bull's disposition, if any. The Whites testified that the bull did not have a ring in its nose, and that they specifically requested Leeder ring the bull as a result of the way the bull bellowed and pawed in the barnyard. Although conceding that he was not an expert on bull behavior, Kevin White testified that had the bull been ringed, the animal would perhaps have had a "different type of attitude."

Leeder and his son, on the other hand, testified that the bull was ringed by an employee named Harold Gransee in their presence prior to being placed in service on the farm. Gransee substantially corroborated this testimony. Leeder also testified that a bull's disposition is not altered by a ring in its nose, and that although he ringed all his bulls, there was no purpose in it "except that it is an old wive's tale."

Evidence was also presented in an attempt to show that the bull could have been kept in a different manner to prevent an accident. Jill White testified that she grew up on a dairy farm on which her father utilized holstein bulls. She testified that her father's practice was to confine the bull in a separate pen rather than allow the animal to run at large with the cows. According to Jill White, her father kept the bull in a separate pen in the barn and the cows would be put in the pen for breeding. The bull would remain in the pen except when her father walked it around the pasture for exercise while holding onto the ring in the bull's nose.

Various witnesses also testified that a chain could have been placed in the bull's nose ring to make the bull more docile and to provide an audible warning of the bull's actions. However, Leeder testified that in his experience such a chain adversely affected a bull's breeding ability. Leeder also testified that it would have been highly dangerous and impractical to keep the bull penned up or under restraints because the bull would be unable to perform its required function without additional animal maneuvering.

At the conclusion of the testimony, the trial court instructed the jury regarding ordinary negligence as well as contributory negligence. In addition, the jury was given Wis.J.I. Civil 1391, relating to Leeder's duty as the owner of the bull to use ordinary care to restrain and control the animal as necessary to prevent injury to others. The trial court read the instruction as follows:

An owner of a bull is deemed to be aware of the natural traits and habits which are usual to a bull, and it is his duty to use ordinary care to restrain and control the animal so that it will not in the exercise of its natural traits and habits cause injury or damage to the person or property of another.

In addition, if an owner is aware or in the exercise of ordinary care should be aware that the animal possesses unusual traits or habits that would be likely to result in injury or damage, then the owner must use ordinary care to restrain the animal as necessary to prevent the injury or damage.

The jury returned a verdict finding Leeder ninety percent causally negligent and White ten percent contributorily negligent. Judgment was entered on the verdict and Threshermen's appealed.

The court of appeals reversed. It concluded that Wis.J.I. Civil 1391 was an incorrect statement of the law as applied to the facts of the present case. According to the court of appeals, the instruction applied only to the duty of an owner to a third party, rather than the duty of an owner to the "keeper" of an animal. The court of appeals determined that White was the keeper of the bull, and therefore "should know of any of the animal's traits and habits that the owner does." The court concluded that the use of the instruction probably misled the jury as to Leeder's duty of care, and the case was remanded for a new trial on liability.

We reverse the decision of the court of appeals. We conclude that the trial court did not abuse its discretion in giving the jury instruction under the facts of the present case.

It is well established that a trial court has broad discretion when instructing a jury. State v. Vick, 104 Wis.2d 678, 690, 312 N.W.2d 489 (1981). If an appellate court can determine that the overall meaning communicated by the instruction as a whole was a correct statement of the law, and the instruction comported with the facts of the case at hand, no grounds for reversal exists. Id. at 690-91, 312 N.W.2d 489.

Wisconsin J.I. Civil 1391, cited below, ¹ covers claims based on common-law negligence. Denil v. Coppersmith, 117 Wis.2d 90, 92, 343 N.W.2d 136 (Ct.App.1983). At common law, the cases have established that the owner or keeper of a domesticated animal is held to anticipate the general propensities of the class to which the animal belongs, as well as any unusual traits or habits of the individual animal. See Leipske v. Guenther, 7 Wis.2d 86, 88, 95 N.W.2d 774, 96 N.W.2d 821 (1959).

The common-law rule first requires the owner or keeper to use ordinary care in controlling the characteristics normal to the animal's class. The owner or keeper of a bull is thus required to take greater precautions to keep it under effective control than would be required of the owner of a cow or steer. See Restatement 2d, Torts, sec. 518, comment g, p. 31 (1977).

The common-law rule further allows the plaintiff to show that the individual animal had vicious or mischievous propensities, and that the owner or keeper knew or should have known of them. A vicious propensity is a tendency of an animal to do any act which might endanger the safety of persons or property in a given situation. See 3A C.J.S. Animals, sec. 180, p. 674 (1973).

In the present case, the trial court determined that the evidence established that bulls are dangerous and by their very nature possess propensities likely to result in injury. The...