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Plaintiff Goode was injured when
his vehicle collided with a cow that he alleged was owned by defendant Bauer.
The place where the collision occurred was in a local stock law area.
The trial court denied plaintiff’s request to instruct the jury that
permitting livestock on a highway in a local stock law area is always
negligence. The jury returned a
verdict in favor of the defendant. In
this opinion, the Court of Appeals upholds that decision.
The local stock laws are not designed to form the basis of negligence per
se claims because a person could violate the stock law without being negligent.
Wesley Goode and Marcy Parkinson
sued W.H. Bauer a/k/a The LaSalle Ranch after Mr. Goode's vehicle hit a cow on
Highway 185 in Calhoun County, Texas, with resulting personal injuries. The case
was tried to a jury that found against the plaintiffs, appellants here, and a
take‑nothing judgment was accordingly entered. Appellants bring one issue
on appeal challenging the trial court's refusal to submit their requested
instruction, "that the law provides that a person may not permit a head of
cattle to run at large in Calhoun, County, Texas," and that a failure to
comply is "negligence in itself."
We affirm.
Four landowners were grazing cattle on lands adjacent to the
accident site. The ownership of the unbranded and unmarked cross breed cattle
roaming the highway right of way was sharply disputed, with the appellee Bauer
denying ownership and the resulting responsibility to restrain them. Although
appellee sought an issue to determine ownership of the errant cattle, it was
opposed by appellant and refused by the court.
Calhoun County has adopted a local stock law as permitted by
statute, with the result that livestock may not run at large in the county. Tex.
Agric. Code Ann. § 143.074 (Vernon 1982). Appellants pleaded a violation of
section 143.074, and section 143.082, which declares it to be a misdemeanor if
one "knowingly" permits livestock to run at large in Calhoun County.
Id. § 143.082 (Vernon Supp.2003). Appellants pleaded that the violations of
these statutes by appellees constituted negligence per se.
Appellants sought the following instruction and question, but
both were refused by the trial court:
With
respect to W.H. Bauer a/d/a The LaSalle Ranch you are instructed that the law
provides that a person may not permit a head of cattle to run at large in
Calhoun County, Texas. A failure to comply with this law is negligence in
itself.
Did the
negligence, if any, of LaSalle Ranch proximately cause the occurrence in
question?
As authority for this instruction, appellants relied solely on
section 143.074 of the agriculture code, which states in its entirety:
Section
143.074. Effect of Election; Adoption of Subchapter
(a)
If a majority of the votes cast in an election are for the proposition, this
subchapter is adopted and, after the 30th day following the date on which the
proclamation of results is issued, a person may not permit any animal of the
class mentioned in the proclamation to run at large in the county or area in
which the election was held.
(b)
Sections 143.077‑143.082 of this code apply only in a county or area in
which this subchapter has been adopted.
Id.
§ 143.074. The trial judge gave the following negligence per se instruction and
issue based on section 143.082:
You are
instructed that the law provides that a person may not knowingly permit a head
of cattle to run at large in Calhoun County, Texas. A failure to comply with
this law is negligence.
Question
No. 1: Do you find that the La Salle Ranch was negligent by knowingly permitting
a head of cattle to run at large which was involved in the incident on the
occasion in question?
A person
acts knowingly, or with knowledge, with respect to the nature of his conduct or
the circumstances surrounding his conduct when he is aware of the nature of his
conduct or that the circumstances exist. A person acts knowingly, or with
knowledge, with respect to the result of his conduct when he is aware that his
conduct is reasonably certain to cause the result.
Appellants argue that section 143.074 is violated if appellee
"permitted" his livestock to run at large, and a violation of the
statute is a breach of a common law duty sufficient to impose liability.
Accordingly, appellants argue, it was improper for the judge to impose a higher
burden on them and to require the jury to find the appellee
"knowingly" permitted his stock to roam at large in order to be
liable. Appellants' theory of the case is that to permit one's cattle to run at
large is a violation of section 143.074 and as such is negligence per se, or
negligence as a matter of law.
There is no common law duty in Texas for an owner of livestock
to restrain his animals within fences.
Gibbs v. Jackson, 990 S.W.2d 745, 747 (Tex.1999) (quoting Clarendon Land, Inv. & Agency Co. v. McCelland, 86 Tex. 179, 23
S.W. 576 (1893)) ("Neither the courts nor the legislature of this state
have ever recognized the rule of the common law of England which requires every
man to restrain his cattle either by tethering or inclosure .... It is the right
of every owner of domestic animals in this state, not known to be diseased,
vicious, or 'breachy,' to allow them to run at large."). Any duty to
restrain livestock is statutory. Gibbs,
990 S.W.2d at 747‑48 (owner of horse in county that had not adopted stock
laws had no duty to prevent animal from running at large on
farm‑to‑market highway).
There are essentially two types of statutes that address an
owner's obligation regarding livestock: (1) section 143.102 of the agriculture
code, prohibiting all owners of livestock to knowingly allow their animals to
roam at large on the right of way of a
state or federal highway in Texas, regardless of whether the local county
has adopted the stock laws requiring the restraint of livestock; and (2)
"stock laws" in those counties that have adopted them. In those
counties that have adopted the stock laws by local election, an owner of
livestock may not permit the stock to run at large under section 143.074 of the
agriculture code; and if he does so knowingly, he is guilty of a misdemeanor
under section 143.082 of the code. Tex. Agric. Code Ann. §§ 143.074, 143.082.
Negligence per se is the doctrine that allows courts to rely
on a penal statute to define a reasonably prudent person's standard of care.
Reeder v. Daniel, 61 S.W.3d 359, 361‑62 (Tex.2001). The effect of
declaring conduct as negligence per se is that the conduct constitutes
negligence as a matter of law. Parrott v. Garcia, 436 S.W.2d 897, 900 (Tex.1969). Several factors
determine whether the violation of a criminal statute gives rise to negligence
per se. The primary ones are whether the plaintiff is in the class of persons
the statute was designed to protect, and whether his injury is the type of
injury the statute was designed to prevent.
Reeder, 61 S.W.3d at 366 (Phillips, J., concurring). Additional
considerations include whether the statute is the sole source of any tort duty,
or whether it merely supplies a standard of conduct for an existing common law
duty; whether the statute puts the public on notice by clearly defining the
required conduct; whether the statute would impose liability without fault;
whether negligence would result in ruinous damages disproportionate to the
seriousness of the statutory violation; and whether the plaintiff's injury is a
direct or indirect result of the violation of the statute.
Id. (citing Perry v. S. N., 973
S.W.2d 301, 309 (Tex.1998)). Applying those considerations, we hold that a
violation of section 143.074 of the agriculture code will not constitute
negligence per se.
Section 143.074 is not a penal statute; rather, it creates a
duty on the keepers of livestock in counties that have adopted local stock laws
to restrain their cattle. It is designed to protect all persons and property
from wandering animals, not just motorists. On the contrary, section143.102 is a
specific prohibition against animals roaming at large on state or federal
highways. The plaintiffs are not in the category of persons that section 143.074
was specifically designed to protect.
No standard of care is stated in section 143.074; instead, the
construction desired by appellants would create the equivalent of strict
liability for the owner of livestock that happen to stray. However liability for
a violation of the stock laws has always required more than the presence of the
defendant's animals in a forbidden place. As the supreme court said in Tex. & Pac. Ry. Co. v. Webb, 102 Tex. 210, 114 S.W. 1171
(Tex.1908):
While
the stock law is intended to require owners to confine animals, the running at
large of which is prohibited, and one who permits them to run at large violates
the law, it is true, nevertheless, that such animals may often escape without
fault on the part of their owners, when the latter will be guilty of no offense
against the law.... But we cannot see how the stock law could so operate against
one guilty of no violation of it; and, as before shown, the mere fact that an
animal is at large is not necessarily a violation.
Id.
at 1173. More recently the supreme court has held that the presence of a horse
on a U.S. highway does not create a presumption that the owner is negligent.
Beck v. Sheppard, 566 S.W.2d 569, 572 (Tex.1978). The courts have been
universal in holding there must be some fault on the part of the owner of the
animal that strayed onto a highway whether the county had adopted stock laws or
under the statutory prohibition of livestock running at large on federal or
state highways. See, e.g., Straitway Transport, Inc. v. Mundorf, 6 S.W.3d 734, 741
(Tex.App.‑Corpus Christi 1999, pet. denied);
Hanna v. Wright, 504 S.W.2d 779, 782‑783 (Tex.Civ.App.‑Tyler
1974, no writ).
Because the legislature has adopted a standard of criminal
culpability does not necessarily mean that the supreme court must adopt that as
a standard of civil liability. Carter v.
William Sommerville and Son, Inc., 584 S.W.2d 274, 278, (Tex.1979) (citing
Howsley v. Gilliam, 517 S.W.2d 531 (Tex.1975) (other citations omitted)).
The negligence of the keeper of livestock in failing to properly restrain his
animals is the usual basis for imposing liability when there is a statutory duty
to restrain. See Straitway Transport,
Inc., 6 S.W.3d at 741 (charge on negligence for failure to properly latch
gate to allow animals to roam on interstate highway);
Hanna, 504 S.W.2d at 782 (although jury failed to find defendant knowingly
permitted livestock to roam at large, it found negligence in failing to maintain
gates, and such was proximate cause of collision). A violation of the statute
requiring restraint of animals in stock law counties does not create a prima
facie case for recovery so as to require the owner of livestock to prove an
excuse or explanation for the animals' escape. Davis v. Massey, 324 S.W.2d 242, 243 (Tex.Civ.App.‑Waco 1959,
no writ).
We hold the trial court did not err in refusing to submit the
requested instruction and question to the jury. The judgment is AFFIRMED.
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