Braswell v. Central Mutual Insurance

223 So. 2d 204, 1969 La. App. LEXIS 5517
CourtLouisiana Court of Appeal
DecidedMarch 3, 1969
DocketNo. 11171
StatusPublished
Cited by1 cases

This text of 223 So. 2d 204 (Braswell v. Central Mutual Insurance) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Braswell v. Central Mutual Insurance, 223 So. 2d 204, 1969 La. App. LEXIS 5517 (La. Ct. App. 1969).

Opinion

DIXON, Judge.

This is a damage suit brought for injuries sustained when plaintiff Mrs. Bras-well fell from a horse owned by one of the defendants. There was judgment for the defendants in the trial court, from which the plaintiffs appeal.

The Lawtons owned an American saddle horse named Sonny, thirteen years old and five-gaited. Desiring to sell the horse, they placed a classified advertisement in the local newspaper as follows:

“BIG Bay American Saddle horse, safe for women and children. Highly trained. 865-5620.”

On Sunday, May 1, 1966, Mrs. Braswell met Mrs. Lawton at Murrell’s Stables to ride the horse, with a view toward purchasing him.

Neither Mrs. Braswell nor Mrs. Lawton were accomplished horsewomen, although each had had some prior experience with horses. Doctor and Mrs. Braswell owned two horses, but they were not gaited saddle horses.

Mrs. Braswell contends that she relied on the representation that Sonny was a gentle horse, suitable for women and children; that while she was riding the horse, he shied for no apparent reason and bolted out from under her. Mrs. Braswell suffered serious back injuries as a result of the fall.

The plaintiffs further contend that the horse had a tendency to shy or bolt, having thrown Mrs. Lawton herself on two previous occasions.

The evidence does not establish any vicious propensity or dangerous habit in the horse in question. The record contains the testimony of previous owners of the horse and of several persons, including children, who had ridden the horse. The witnesses uniformly testified that the horse was of a gentle nature and had never been known to be unruly or to exhibit any dangerous tendency.

Shortly after the accident, in a conversation with Dr. Braswell, Mrs. Lawton had told Dr. Braswell that she had been previously “thrown” on two occasions by this horse. She did not explain to Dr. Braswell the circumstances of the occurrences, and, in view of her explanation, her choice of the word “thrown” was unfortunate. On one occasion Mrs. Lawton was riding Sonny bareback, with her three year old son on the horse in front of her. She allowed the reins to drop on the horse’s neck; the horse made an unexpected movement to one side, and Mrs. Lawton fell or slid off the animal. The other occasion on which Mrs. Lawton said she had been “thrown,” involved an improper maneuver while Mrs. Lawton attempted to mount her horse. She dropped the reins with one foot in the stirrup, and the horse moved off before Mrs. Lawton seated herself in the saddle, causing her to fall.

On the day of the accident, Mrs. Bras-well rode the horse down the road and was pleased “with the way he had gone into his gaits.” Mrs. Braswell had then taken the horse into the riding ring; she testified that while going at a “brisk walk” the horse suddenly shied, bolted forward and to the left, throwing Mrs. Braswell off to the right. Mrs. Braswell described the horse’s actions as jumping out from under her. She had been riding the horse about fifteen or tw'ehty minutes when the accident happened.

[206]*206One seventeen year old witness, William Clinton Bates, testified that he saw Mrs. Braswell riding the horse “at a gallop, not running”; that when the horse got near some crossties, “he moved around and she fell off.”

A fourteen year old witness, Nancy Tyler, testified that Mrs. Braswell was riding Sonny at a trot when, at a distance of ten or twelve feet from the crossties, Sonny “just sort of stepped sideways,” and Mrs. Braswell fell off backwards. This witness testified that the horse did not change his gait and did not rear or buck.

Numerous witnesses testified to the nature of the horse. It had been owned by the owner of the stable, and was rented to those who wanted to ride, except for periods when the horse was owned by other persons. Even when the horse was owned by those other than the operator of the stable, he was boarded at the stable. Except for the two incidents involving Mrs. Lawton’s own falls, there was no evidence of any previous difficulty of any nature with Sonny.

In Talley v. Travelers Insurance Company, La.App., 197 So.2d 92 (1967), it was stated:

“The law with respect to personal injuries caused by domestic animals is well settled. For one to recover for such injuries, they must satisfy the burden of proving (1) the existence of dangerous propensity of the animal inflicting the damage, and (2) knowledge of such propensity on the part of the owner of the animal. These dual requirements for liability have been uniformly accepted by our courts.”

The Louisiana Supreme Court in Tamburello v. Jaeger, 249 La. 25, 184 So.2d 544 (1966), stated:

“In speaking of what constitutes viciousness, it is stated in 3 C.J.S. Animals § 148c, pp. 1250-1251:
“ ‘A vicious propensity is a propensity or tendency of an animal to do any act that might endanger the safety of the persons and property of others in a given situation. Although an animal is actuated solely by mischievousness or playfulness, rather than maliciousness or ferociousness, yet, if it has a tendency to do a dangerous or harmful act, it has a vicious propensity within the meaning of the rule holding the owner or keeper liable for injuries resulting from vicious propensities of which he has knowledge.’ ”

The evidence in this case negatives the existence of any dangerous or vicious propensity in Sonny.

The added element of the classified advertisement, which attracted Mrs. Bras-well’s attention to Sonny initially, is conceived by the plaintiffs to make this case, in some way, different from other “horse cases.” Mrs. Lawton’s advertisement said the animal was “safe for women and children.” However, there is no evidence that Mrs. Lawton did not believe the horse to be “safe for women and children,” or at least as safe for women and children as any other gaited saddle horse. A “safe” horse is still a thing of motion with a mind of its own, intended to be directed and controlled by a rider elevated several feet above the surface of the earth, who must maintain his equilibrium with a minimum amount of mechanical assistance. If the word “safe” is to be understood with scientific precision, with no latitude and no shades of meaning, then it would be reasonable to say that no horse is “safe for women and children,” and that Mrs. Braswell, having had some experience with such animals, should have known it.

Words, however, must be taken in their ordinary and usual meaning. The evidence discloses that Sonny was about as safe as might be expected of any thirteen year old gaited saddle horse, that he did not possess any dangerous propensity, and that the numerous persons who testified at the trial knew him, without ex[207]*207ception, as a gentle animal. The record is not convincing that Mrs. Lawton should have reasonably anticipated that Sonny would do anything unexpected which might result in injury to Mrs. Braswell. The injury to Mrs. Braswell was not Mrs. Law-ton’s fault.

One portion of plaintiffs’ argument is that, since Civil Code Article 2321 states: “The owner of an animal is answerable for the damage he has caused. * * * ” the jurisprudence of the state has established a rule that, when an animal has caused damage, the owner will be liable unless he can prove that he was free from fault.

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Bluebook (online)
223 So. 2d 204, 1969 La. App. LEXIS 5517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/braswell-v-central-mutual-insurance-lactapp-1969.