Wilson v. Rule

• Decision Date: 10 June 1950
• Docket Number: No. 37805,37805
• Citation: 169 Kan. 296,219 P.2d 690
• Parties: WILSON v. RULE.
• Court: Kansas Supreme Court

Page 690

219 P.2d 690

169 Kan. 296

WILSON v. RULE.

No. 37805.

Supreme Court of Kansas.

June 10, 1950.

Syllabus by the Court

1. In an action against the owner of a mule to recover for damages alleged to have been sustained when a car being driven by one of the plaintiffs collided with it while it was loose upon the highway, it is held (a) the doctrine of res ipsa loquitur does not apply; and (b) the words 'run at large' as used in G.S.1935, 47-122, do not mean merely unattended upon the highway.

2. In order for the driver of an automobile to recover damages from the owner of a mule under the circumstances described in the above paragraph of this syllabus, the plaintiff must prove that the mule was loose on the highway as a result of its being intentionally turned loose, or on account of the negligent failure of its owner or the person responsible for its custody to keep it confined.

John F. Eberhardt, of Wichita, argued the cause, and George Siefkin, George B. Powers, Samuel E. Bartlett, Carl T. Smith, Stuart R. Carter, Thomas E. Woods and Robert C. Foulston, Jr., all of Wichita, were with him on the briefs, for the appellant.

Wayne Coulson, of Wichita, argued the cause, and Howard T. Fleeson, Homer V. Gooing, Paul R. Kitch, Dale M. Stucky and Donald R. Newkirk, all of Wichita, were with him on the briefs, for the appellee.

SMITH, Justice.

This is an action for damages alleged to have been sustained when a car being driven by plaintiff collided upon the highway with a mule owned by defendant. Judgment was for plaintiff. Defendant has appealed.

The petition alleged that about 9:30 p. m. plaintiff was driving his automobile north on a state highway; that two mules suddenly emerged, trotting upon the highway, directly in his path and the automobile collided with one of them; that defendant owned them and the proximate cause of the collision was defendant's negligent failure to keep them confined, as required by G.S. 1935, 47-301 et seq; he alleged damages to his automobile and prayed for judgment in that amount.

Before the trial started, counsel for plaintiff stated he based his right to recover upon G.S. 1935, 47-122, 47-124 and 47-301 et seq. rather than G.S.1935, 47-301 et seq.

Plaintiff testified he was driving on the highway and his lights were in good condition; that he saw the mules come from the left about 75 feet ahead of him; that he slammed on his brakes because they came on the highway so suddenly; that he hit the rear end of the first mule and damaged his car; that defendant said he owned the mules and had owned them only about three weeks and apparently they had opened the gate and were going back to their former home. He then introduced evidence as to damages to the car, about which there was no dispute, and rested. The defendant demurred to the evidence. The demurrer was overruled.

There was evidence in behalf of defendant with which we are not concerned here.

The specifications of error as far as we are now concerned are that the trial court erred in overruling defendant's objection to the introduction of evidence, his demurrer to plaintiff's evidence, his motion for a directed verdict and for judgment notwithstanding the verdict.

The plaintiff's theory will be stated first: He argues G.S.1935, 47-122 and 47-123 by their precise terms are applicable to persons in plaintiff's situation and no search for the legislature's reasons for enacting the statute is necessary or permissible; that even in the absence of a statute, under the common law, proof that animals are unattended upon a highway is sufficient evidence to make a prima facie case of negligence upon the part of their custodian; proof that defendant's mules were at large in violation of a statute placed upon defendant the burden of proving his violation of the statute was not due to lack of care upon his part.

The arguments send us to a consideration of the development of the law having to do with loose stock. In England the liability of the owner of stock was confined to damages caused by the stock when it had invaded the land of another. Such was not well adapted to the early day conditions of this country, especially those states comprising the great plains area, where open range for stock was to become a common feature of our rural life. This feature of our law is the story of the attempts of the legislatures and courts to adjust the rights of the farmers who tilled the soil and planted crops on the one hand, and those who emphasized stock raising on the other. The common law was remedied by the adoption in the states of so-called 'fence' laws, whereby landowners were required to fence out their neighbors' wandering livestock in order to protect their crops. In Kansas the subject was treated in Chapter 40 of G.S.1868, §§ 1-4, now appearing as G.S.1935, 29-101 to 29-104. This statute it will be noted is carried in the statute books under the subject of fences. By its enactment the common law was so far modified that no action would lie for injuries done on real estate by trespassing cattle unless the real estate was enclosed with a sufficient fence, as prescribed by the statute. See Union Pac. Ry. Co. v. Rollins, 5 Kan. 167; also Darling v. Rodgers, 7 Kan. 592.

By the time the next legislature met those who placed their emphasis on growing crops, as distinguished from running stock on the open range, began to make their influence felt. The legislature in 1870 enacted Chapter 115. It provided in the first section that it should relate only to six counties named and that it should be in effect for only five years. Section 2 provided that the owner of stock who allowed it to trespass on the land of another should be liable in damages to the person so injured. There were other provisions not now important. In Saline county Rodgers sued Darling because Darling's stock came on Rodgers' wheat field and did damage. Darling answered not denying the damage but alleging that there was no fence around Rodgers' wheat field. The trial court sustained a demurrer to this answer and gave plaintiff judgment for $25. If Chapter 115 had been good, the demurrer was rightfully sustained because Darling, the owner of the stock, was liable. We held Chapter 115 bad because it did not have a uniform operation throughout the state. See Darling v. Rodgers, supra. The opinion is important, namely for historical purposes.

There was in 1868 also an effort to limit somewhat the effect of Chapter 40. That was by the enactment of Article 1 of Chapter 105 of that session. It provided that upon the presentation to the board of county commissioners of a petition signed by a majority of the electors of a township, the county board should make an order that all owners of domestic animals should keep them confined in the nighttime for certain portions of the year. There was also a section making the owners of stock liable for any damages from the depredations of such stock. This act was held valid. See Noffzigger v. McAllister, 12 Kan. 315.

The legislature of 1872 enacted Chapter 193 of that session. It is spoken of generally as the 'Herd Law.' It gave the county commissioners power to direct what animals should not be allowed to run at large within the county. After providing for the recordation of the order, the statute provided that persons injured in property by the running at large of any of the animals named in the order should have a lien upon the animals for the damages committed upon the property of such person. The next section provided for the taking into custody of animals about to commit a trespass upon premises owned by the person taking them up, and in another section that any landowner in such a county, who should enclose his land by a good and lawful fence, should have the same rights and powers conferred upon owners of real estate in counties not having the herd law. This chapter is carried in our present statute book as G.S.1935, 47-301, 302, 303, 304 and 305.

The legislature of 1874 again dealt with the subject by the enactment of Chapter 128 of that session. The first section provided that when two-thirds of the legal voters of any county should petition the county commissioners to make an order that all neat cattle, horses, mules, asses, swine and sheep shall be prohibited from running at large, the order should be made. Section 2 provided any person who should permit any of those animals to run at large shall be deemed guilty of a misdemeanor and upon conviction should be fined. The third section provided that the owners of any of these animals permitted or allowed to run at large should be liable to any person who should suffer damage from the depredations or trespasses of these animals. The section further provided for a lien. This chapter is carried in our statute books as G.S.1935, 47-309, 310, 311 and 312.

The legislature of 1879 further supplemented the herd law by the enactment of Chapter 175 of the Laws of that session. By the first section of this chapter the county commissioners were given the power to rescind or modify the herd law by providing what animals should not be permitted to run at large. The third section provided for the county commissioners calling an election on receipt of proper petitions and submitting to the people of the county the question of the suspension of the herd law. This chapter is carried in our present statute as G.S.1935, 47-306, 307 and 308.

It will be noted that from 1868 to 1879 the question of livestock and liability of the owner on account of its being at large was a live legislative question. It received the attention of practically every legislature. Chapter 128 of the Laws of 1874 was the most comprehensive enactment. There can be but little doubt the damages for which owners of liverstock at large upon the highways were liable in the early days were those caused by the stock while trespassing on real estate. It should be remembered that these laws were all enacted before...