University of Vermont AAHS

Branch v. McCroskey


Tennessee Court of Appeals
UNPUBLISHED, 1998 WL 47873
February 5, 1998


Summary of Opinion

Plaintiff Branch’s truck collided with defendant McCroskey’s horse on a public highway. The horse had escaped from a corral near the highway where he was being held preparatory to a show. The jury found in favor of the defendant and the plaintiff appealed claiming that the trial court erred in several rulings.

The plaintiff argued that the fence forming the corral did not comply with the definition of a lawful fence under Tennessee law and that made defendant liable for the injury inflicted by his horse. But the Court of Appeals held that the evidence was that the corral fence was by custom an adequate fence and the fact that it was not a “lawful fence” did not mean that defendant was negligent in permitting his horse to be placed in such a confinement.

In other words, had the corral fence been a lawful fence and in good repair, it would have meant that the defendant could not be held liable for the injury inflicted by his horse. But the reverse is not true--the fact that the fence was not in conformity to those requirements does not mean that he is liable. The question still remains whether the defendant was negligent in confining the horse behind the fence that existed at that time and place. Plaintiff did not prove that the defendant was negligent in confining his horse in that corral.


Text of Opinion



This appeal came on to be heard upon the record from the Circuit Court of Knox County, briefs and argument of counsel. Upon consideration thereof, this Court is of the opinion that there was no reversible error in the trial court.

The judgment of the trial court is affirmed in all respects. Costs are assessed to the appellant and this case is remanded to the trial court.


In this action, the appellant (plaintiff) sought a recovery for damages sustained to his pickup truck, lost earnings and related expenses caused by a collision between his vehicle and a horse belonging to the defendant, Rodney McCroskey. The accident occurred in the plaintiff's lane of travel on a public road, generally referred to as the Governor John Sevier Highway. The defendant, Rodney McCroskey, filed a cross-claim against the defendant, Governor John Sevier Memorial Association. He, however, was permitted to take a voluntary non-suit. The case was tried before a jury and resulted in a verdict for the appellees (defendants) in the original action. Judgment for the defendants was duly entered on the verdict. The plaintiff filed a motion for a judgment notwithstanding the verdict (JNOV) or in the alternative for a new trial. The motion was overruled and this appeal resulted. We affirm the judgment of the trial court.

For his cause of action, the plaintiff alleged that at about 5:30 a.m., he was traveling in his pickup truck on Governor John Sevier Highway when he struck a horse, which was in his lane of travel, resulting in damages to his vehicle. He asserted that the horse was owned by the defendant, Rodney McCroskey and that the horse had been taken to the Governor John Sevier Association's corral for the purpose of allowing the association to display the horse along with another horse. He claims that the defendants were negligent in placing the horses in a corral which consisted of a two rail wooden fence and that the fence was in violation of the "fence law of the State of Tennessee as contained in T.C.A. 44-8-101, et seq." He further charged negligence, claiming that McCroskey knew or should have known that the corral and fence enclosure in which he placed the horses was grossly inadequate and could not reasonably be expected to hold the horses; and that further he knew or should have known that he was in violation of the fence law. As to the defendant, Governor John Sevier Memorial Association, he alleged that the defendant, as lessee of the property on which the corral was located, assumed responsibility in housing the horses and knew or should have known that the corral was not reasonably adequate to maintain the horses.

From the adverse judgment, the plaintiff perfected his appeal to this court. On appeal, the plaintiff claims that the court erred in failing to enter a JNOV pursuant to Rule 50, Tennessee Rules of Civil Procedure; for failure to direct a verdict at the conclusion of all the proof; there was no material evidence to support the judgment in favor of the defendants and that the court erred in not permitting plaintiff's counsel from cross examining the defendant, McCroskey, concerning the allegations of negligence against his co-defendant in his cross-claim. He further charges the court with error in reprimanding plaintiff's counsel during final argument for stating that the plaintiff had no collision insurance. Additionally, he claims that the court should have given his special request for a jury instruction regarding T.C.A. 44-8-103, et seq.

Where, as here, a trial judge has approved a jury's verdict, our standard of review is whether there is any material evidence to support the verdict. T.R.A.P. 13(d). Thus, absent a reversible error of law, we will set aside a judgment on a jury verdict only where the record contains no material evidence to support the verdict. Foster v. Bue, 749 S.W.2d 736, 741 (Tenn.1988).

Most of the issues are interrelated and we will discuss them together. Both a directed verdict or a JNOV are subject to the same analysis. In deciding whether to grant a directed verdict or a JNOV, the trial court must take the strongest legitimate view of the evidence in favor of the non-moving party and discard all countervailing evidence. See Eaton v. McLain, 891 S.W.2d 587 (Tenn.1994).

To receive the benefit of a directed verdict in his favor, a plaintiff must first make out a prima facie case. Therefore, it is incumbent upon us to first determine whether the plaintiff carried his burden.

It is an elementary principle of law that the plaintiff has the burden of proof on all issues necessary to establish his claim. The burden of proof is on the party having the affirmative of an issue and this burden never shifts. Freeman v. Felts, 208 Tenn. 201, 344 S.W.2d 550, 554 (1961). "The burden of proof rests on him who affirms, not on him who denies." Galbreath v. Nolan, 58 Tenn.App. 260, 429 S.W.2d 447, 450 (1967). Therefore, the defendant bears no burden of proof unless an affirmative defense is asserted. Even if an affirmative defense is asserted and there is no material evidence to support it, the plaintiff is not entitled to a judgment unless the plaintiff has carried his initial burden of proof, i.e., proof on all issues necessary to establish his claim. "... in any negligence case, the plaintiff must prove by a preponderance of the evidence the existence of a duty, a breach of that duty, causation and injury." Lindsey v. Miami Development Corp., 689 S.W.2d 856, 858 (Tenn.1985). If the plaintiff has failed to carry his burden in this case, all other issues are moot.

The plaintiff relies heavily upon T.C.A. 44-8-101, et seq. It appears that title 44, Section 8, Part 1, et seq., were adopted when Tennessee was still an "open range" state. This being the case, it was incumbent upon a landowner to have a lawful fence around his property in cultivation to keep animals out rather than in. Before a planter or cultivator could recover damages from an owner of an animal at large, he was under a duty to establish that he had a lawful fence surrounding the damaged property. This conclusion is reached by reading the provisions of Title 44, Chapter 8, Title 1 in para materia. Exemplary provisions are as follows:

Thus, under the statutes at the time of their adoption, a landowner seeking damages from the owner of an animal, had the burden of maintaining a lawful fence. [FN2] Nevertheless, however, Title 44, Section 8, Part one has some application under the circumstances of this case since the General Assembly by Public Acts 1947, ch. 52, 1, now codified in T.C.A. 44-8-401 prohibited livestock from running at large. That section provides as follows:

* * *

The applicable Section of Title 44, Chapter 8, now codified in T.C.A. 44- 8-103 which provides as follows:

After the passage of the above statute, the burden of maintaining sufficient fences was placed upon the owner of livestock. The governing rule in this jurisdiction is where an owner of animals negligently allows them to run at large, he is liable for the resulting damages if proximately caused by his negligence but he is not liable if an animal escapes without his fault from a pasture enclosed by a lawful fence or an ordinary fence which is usually required to restrain that particular kind of livestock. See Moon v. Johnston, 47 Tenn.App. 208, 337 S.W.2d 464 (1959).

The plaintiff would have us find that a violation of T.C.A. 44-8-103 is negligence per se. Construed in conjunction with T.C.A. 44-8-401 and the rule stated in Moon, supra, reason dictates that such a violation cannot be negligence per se since it is optional to have a "lawful fence" or an ordinary fence which is usually required to restrain that particular kind of livestock. [FN3]

In the record before us, there is evidence that the defendants did not maintain a "lawful fence" as defined in T.C.A. 44-8-103, however, the record is completely devoid of any evidence that the corral fence was not a fence usually required to restrain horses. On the contrary, there is evidence that the defendants inspected the fence and found it suitable to contain horses. There is no dispute about the construction of the fence. It consisted of a split rail fence, with two rails between each post. There is testimony by the plaintiff that the top rail of the fence was thirty to thirty-two inches high. There was also testimony by the defendant McCroskey that he checked the corral and had no concerns about putting his horses there. Further, when asked if he would consider the fence a substantial fence, he responded that "I figured it would be secure enough to hold my horses." He also testified that the fence was a type of fence that might be used to corral horses in this state. This testimony is uncontroverted.

From the foregoing, it seems patently clear, that the plaintiff was neither entitled to a directed verdict nor a JNOV. On the contrary, it appears that he failed in his burden of making a prima facie case. In any event there is material evidence to support a verdict in favor of the defendants.

[Discussion of procedural points not affecting the outcome is omitted.]

The judgment of the trial court is affirmed in all respects. Costs are assessed to the appellant and this case is remanded to the trial court.

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