Harlow v. Hayes

991 S.W.2d 24, 1998 Tex. App. LEXIS 4000, 1998 WL 391583
CourtCourt of Appeals of Texas
DecidedJuly 2, 1998
DocketNo. 07-97-0330-CV
StatusPublished
Cited by6 cases

This text of 991 S.W.2d 24 (Harlow v. Hayes) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harlow v. Hayes, 991 S.W.2d 24, 1998 Tex. App. LEXIS 4000, 1998 WL 391583 (Tex. Ct. App. 1998).

Opinion

BOYD, Chief Justice.

Presenting four issues which appellant Carrollyn Sue Harlow argues show reversible error, she challenges a take-nothing judgment in favor of appellees Kelly Hayes and Triego, Inc. Those issues are whether: 1) the trial court committed reversible error in failing to render judgment for her upon an instructed verdict based upon section 143.028(b) of the Texas Agriculture Code and based upon the damage findings by the jury; 2) whether the trial court committed reversible error in not allowing her to cross-examine appel-lees’ fence experts on section 143.028 of the Texas Agriculture Code and on fence regulations promulgated by the United States Department of Agriculture; 3) and 4) whether the jury findings on physical pain, mental anguish and physical impairment are against the great weight and preponderance of the evidence and in irreconcilable conflict with its damage findings on lost wages. Concluding no reversible error exists, we affirm the judgment of the trial court.

This action arose because of a collision on U.S. Highway 287 between an automobile in which appellant was a passenger and a horse owned by Hayes. The accident occurred between 7:00 p.m. and 7:30 p.m. on January 19, 1991. The horse escaped from a pasture controlled by appel-lees, which is enclosed by a single wire electric fence and some distance from the highway. Hayes testified that he checked the fence daily and it was working properly when he left the pasture for the day sometime between 5:00 and 5:30 p.m.

However, Hayes averred, the next morning he found a gated portion of the fence down and not operative. He offered evidence that showed tread marks of an unknown vehicle in the mud that had apparently crashed into the fence after he had left for the day on January 19th. This breach caused the fence not to work properly allowing the horse to escape. In contrast, it was appellant’s theory that the horse had jumped the fence and wandered down the country road and onto the highway.

[26]*26During the course of the trial, the trial court originally instructed the jury that appellees’ single wire electric fence was “insufficient under Texas Agricultural [sic] Code Section 143.028” and that they “failed to maintain a sufficient fence, which was a proximate cause of the collision.” However, despite this instructed verdict, the trial court subsequently decided that section 143.028 was not applicable in this case and never entered judgment based upon its instruction. Instead, at the conclusion of the presentation of evidence, the trial judge submitted a question to the jury inquiring whether either or both ap-pellees failed “to restrain the horse in question from running at large or permit the horse in question to run at large, which was a proximate cause of the collision in question.” He also submitted a query as to whether or not either or both appellees knowingly permitted the horse to traverse or roam at large unattended on the highway which was a proximate cause of the collision.

Accompanying the submitted questions, the court instructed the jury on proximate cause and new and independent cause. Although the jury found appellant had suffered damages, it returned negative answers to each of the causation issues. Subsequent to receipt of the jury verdict, the court rendered the take-nothing judgment giving rise to this appeal.

In support of her first point, appellant argues that the single wire electric fence was insufficient under section 143.028 of the Agriculture Code. She contends that this section establishes the minimum requirements for enclosures built to confine livestock in a county in which a stock law has been adopted. On the other hand, appellees contest this conclusion and say that the section is not applicable to this lawsuit. In relevant part, the section provides:

§ 143.028. Fences
(a) A person is not required to fence against animals that are not permitted to run at large. Except as otherwise provided by this section, a fence is sufficient for purposes of this chapter if it is sufficient to keep out ordinary livestock permitted to run at large.
(b) In order to be sufficient, a fence must be at least four feet high and comply with the following requirements:
(1) a barbed wire fence must consist of three wires on posts no more than 30 feet apart, with one or more stays between every two posts;
(2) a picket fence must consist of pickets that are not more than six inches apart;
(3) a board fence must consist of three boards not less than five inches wide and one inch thick; and
(4) a rail fence must consist of four rails.

Tex. Agrie. Code Ann. § 143.028(a) & (b) (Vernon 1982).

The purpose of statutory construction is always to ascertain legislative intent. Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 438 (Tex.1997); City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273, 278 (1951). Where the intent is clear, it will be given effect, even if the result appears to the courts to be harsh, or even ill-advised. Turner v. Cross, 83 Tex. 218, 18 S.W. 578, 579 (1892). Every word in a statute must be presumed to have been used for a purpose and every word excluded for a purpose. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981).

In the Code Construction Act,1 the Legislature, to aid in ascertaining its intent, has provided that words and phrases shall be read in context and construed following the rules of grammar and common usage. Texas Gov’t Code Ann. § 311.011(a) (Vernon 1988). Furthermore, it is presumed that the statute is constitutional, that the entire statute is intended to be effective, [27]*27and that a just and reasonable result feasible of execution is intended. Texas Gov’t Code Ann. § 311.021(l)-(4) (Vernon 1988).

It is undisputed that after an election called for the purpose of determining whether a stock law should be adopted in Sherman County, such a law was adopted and became effective 30 days after May 22, 1935. Sherman County, Tex., Ordinance for Restraining Horses, Mules, Jacks, Jennets, and Cattle from Running At Large (May 22, 1935). The law prohibited horses, mules, jacks, jennets and cattle from running at large within the territorial limits of the county. Id.

Chapter 143 of the Agriculture Code is entitled “Fences; Range Restrictions.” Tex. Agrie. Code Ann. §§ 143.001-143.123 (Vernon 1982 & Supp.1998).2 Subchapter A is entitled “Fencing of Cultivated Land.” Section 143.001 provides that, except for an area in which a stock law has been adopted, “each farmer or gardener shall make a sufficient fence around cleared land in cultivation that is at least five feet high and will prevent hogs from passing through.” Section 143.002 provides that a person may not build, join, or maintain around cleared land in cultivation more than three miles lineal measure of fence running the same general direction without a gate that is at least 10 feet wide and is unlocked.

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991 S.W.2d 24, 1998 Tex. App. LEXIS 4000, 1998 WL 391583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harlow-v-hayes-texapp-1998.