Pilar Rodriguez v. Sandhill Cattle Co., L.P. , 427 S.W.3d 507 ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00043-CV
PILAR RODRIGUEZ, APPELLANT
V.
SANDHILL CATTLE CO., L.P., APPELLEE
On Appeal from the 242nd District Court
Castro County, Texas
Trial Court No. B9163-1004, Honorable Edward Lee Self, Presiding
March 10, 2014
OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Pilar Rodriguez sued Sandhill Cattle Co., L.P., for damages arising from his
colliding with cattle on a roadway after midnight. The cattle belonged to Sandhill and
had been pastured at a location several miles from the accident scene. The pasture
was surrounded by a functioning "hot-wire" when the cattle were left there. Sometime
later, a portion of the cattle escaped the pasture and roamed the area. It was later
discovered that the "hot-wire" had been broken.
At trial and after Rodriguez "rested," Sandhill moved for a directed verdict
contending that its opponent had failed to prove a violation of the local stock law. The
trial court agreed, granted the motion, and entered judgment for Sandhill. Rodriguez
appealed. He contends that 1) the trial court applied an incorrect legal standard in
granting the directed verdict and 2) some evidence of negligence appeared of record
precluding entry of a directed verdict. We affirm the judgment.
Much like when we review a summary judgment, we review a directed verdict by
determining whether the evidence before the trial court created a material issue of fact.
Prudential Ins. Co. of America v. Financial Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.
2000) (stating that a directed verdict is proper when a plaintiff fails to present probative
evidence raising a fact issue on the material questions involved in the suit). This
requires us to view the evidence in the light most favorable to the party against whom
the judgment was entered and resolve all reasonable inferences arising from that
evidence in a manner favorable to the non-movant. Yorkshire Ins. Co. v. Seger, 279
S.W.3d 755, 772 (Tex. App.—Amarillo 2007, pet. denied).
Next, no one questions that in Texas there exists no common law duty to restrain
cattle within fences. Gibbs v. Jackson, 990 S.W.2d 745, 747-48 (Tex. 1999); accord
Palmer v. Hinders, No. 07-99-0341-CV, 2000 Tex. App. LEXIS 3657, at *4 (Tex. App.—
Amarillo June 1, 2000, no pet.) (not designated for publication) (stating that Texans
have no common law duty to fence their domestic animals such as cows and horses).
Rather, they agree that the duty underlying Rodriguez' complaint is a creature of statute
and arises under § 143.074 of the Texas Agriculture Code. The latter provides that “a
person may not permit" livestock "to run at large in the county or area in which" a local
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stock law was adopted by popular vote.1 TEX. AGRIC. CODE ANN. § 143.074(a) (West
2004). The county (that is, Castro County) wherein Sandhill pastured its cattle was one
such county.
Next, the duty being a creature of statute, its scope is defined by the statute
creating it. Meritor Automative, Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 89 (Tex.
2001). So, our focus lies upon the words "permit" livestock "to run at large" for that is
what our legislature said a person could not do. And, with that in mind, we note the
recent decision from a sister court in Rose v. Hebert Heirs, 305 S.W.3d 874 (Tex.
App.—Beaumont 2010, no pet.). There, Rose struck a bull that escaped its enclosure
and sued the landowners contending that they were negligent in permitting the bull to
roam at large. This resulted in the court having to construe § 143.074 of the Agriculture
Code and what was meant by the word "permit." Given the lack of any statutory
definition of the word, the Rose court turned to authority requiring it to assign the word
its common or plain meaning, id. at 881; TEX GOV’T CODE ANN. § 311.011(a) (West
2013), and found that meaning to be "'to consent to expressly or formally' or . . .'to give
leave.'" Rose v. Hebert Heirs, 305 S.W.3d at 881. Then, it applied that definition and
ultimately held that the plaintiffs "failed to meet their burden of producing evidence to
show that the Landowners breached section 143.074." Id. at 881-82.
1
Permitting livestock to run at large may also be a class C misdemeanor. However, the statute
making it so, § 143.082 of the Texas Agriculture Code, differs from § 143.074 in one important way. It
adds the word “knowingly” before permit; that is, it states: “A person commits an offense if the person
knowingly permits a head of cattle . . . to run at large in a county . . . .” TEX. AGRIC. CODE ANN. § 143.082
(West 2004). The Supreme Court suggested in Beck v. Sheppard, 566 S.W.2d 569 (Tex. 1978), that
“knowingly” encompassed “‘an intention to do the act complained of or such negligence as is tantamount
to a wilful act.’” Id. at 572, quoting Jackson v. Overby, 185 S.W.2d 765 (Tex. Civ. App.—Eastland 1945,
no writ). So, one could reasonably deduce that from the absence of the modifier “knowingly” in
§ 143.074, proof of intentional conduct or negligent conduct tantamount to a wilful act would not be
necessary when suit is founded upon § 143.074.
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The analysis undertaken by the Rose court in affirming the trial court also merits
comment. It searched the record and then said:
. . . we are unable to find any evidence showing that the Landowners
"permitted" the bull to roam at large. Nothing in the record indicates the
Landowners visited the property or that they had entered the gate at any
point in time relevant to the date of the collision. There is no evidence that
any of the Landowners left the gate open. We find no evidence that the
Landowners authorized the bull's owner, the lessee that was granted
grazing rights, or any hunters that held hunting rights, the right to leave
the gate open. There is no evidence that the Landowners authorized
either Youmans or Gilfillian the right to run cattle at large. There is also no
evidence that the Landowners had been notified of the bull's escape prior
to the collision, and there is no evidence that the Landowners were aware
that any cattle had previously escaped from the pastures they leased.
Finally, there is no evidence that the pasture's fence and its gate were not
fit for the ordinary uses for which they were intended.
Id. (Emphasis added). The nature of the evidence found missing indicates that
the court's interpretation of "permit" did not simply include conscious or knowing
conduct on the part of the individual who purportedly gave the bull leave to roam.
Rather, it also encompassed conduct undertaken by one who failed to act reasonably
under the circumstances. Allusion to 1) knowing whether the animal previously
escaped from other pastures and 2) whether the facilities were "fit for the ordinary uses
for which they were intended" suggest as much. Indeed, it would strain belief to
conclude that unreasonable conduct (or conduct differing from what an ordinarily
prudent person would engage in under the circumstances) could never indicate
permission to allow cattle to roam. For instance, tethering a grown bull's hoof to a stake
via a piece of household sewing thread will hardly deter the bull from moving in any
meaningful way. While that may indicate some subjective desire to prevent the bull
from roaming, a prudent person should find fault in the effort. So, under that
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circumstance, it would be reasonable for a fact finder to deduce that the conduct was
tantamount to giving the animal leave to roam. See Gibbs v. Jackson, 990 S.W.2d at
749-50 (discussing an identically worded counterpart to § 143.074, that is, § 143.024 of
the Texas Agriculture Code, and stating that Texas courts have used the provision to
hold or assume that livestock owners may be liable for negligence if their animals stray
onto highways).
Given that Rose focused on § 143.074, the nature of the duty imposed
thereunder, and its analysis of what was meant by "permit," we find the opinion quite
persuasive and applicable here. And given the tenor of the questions asked by the trial
court of Rodriguez' counsel before granting the directed verdict,2 it also appears that the
trial court utilized Rose in assessing whether a directed verdict was appropriate.
With this said, we turn to the arguments before us. The first we address is that
insinuating the trial court erred in obligating Rodriguez to prove Sandhill engaged in
something more than negligence. Given that the trial court applied the Rose definition
of "permit" in making its decision and our adoption of that definition as controlling, we
reject the proposition.
Next, we address the argument that livestock escaping its confines creates a
presumption of negligence. As Rodriguez himself recognizes in his appellate brief, the
Supreme Court disavowed that notion in Beck v. Sheppard, 566 S.W.2d 569 (Tex.
1978). Id. at 572 (stating that neither the ownership of the animal nor the ownership of
the premises created a rebuttable presumption that the animal’s presence on the road
was due to the negligence of either). Animals may escape through no fault of their
2
E.g.: "What evidence do you point to specifically that the defendant permitted the cattle to roam
at large based on the definition that we have in the law which means to consent to expressly or formally,
or to give leave?"
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owners. Schumacher v. Caldwell, 206 S.W.2d 243, 266-67 (Tex. 1947) Thus, the fact
of their escape is not alone evidence of misconduct on the part of their owner. Id.; Van
Horne v. Harris, No. 2-06-183-CV, 2007 Tex. App. LEXIS 2266, at *10 (Tex. App.—Fort
Worth March 22, 2007, no pet.) (mem. op.) (stating that a violation does not occur solely
because an owner’s livestock runs at large); Goode v. Bauer, 109 S.W.3d 788, 792
(Tex. App.—Corpus Christi 2003, pet. denied) (stating that liability for the violation of
livestock laws requires more than the presence of the animals in a forbidden place)
Lastly, we address whether there appeared evidence of record indicating that
Sandhill permitted its cattle to run at large. Rodriguez cites us to evidence that the
cattle in question weighed approximately 500 pounds each, 80 head were placed on 60
acres, only one hot-wire surrounded the pasture, the wire had only one power source,
only that portion of the wire near the trough held additional marking, and some of the
steers were "bulling."3 Yet, absent is evidence that steers attempting to copulate with
each other charge, wander, stampede, fall, fight, or the like. Nor is there evidence that
such conduct was pervasive, happened near the wire, or was immune from impedance
from a wire charged with electricity. Similarly missing is evidence that a single strand of
14 gauge electrified wire (like that present here) was insufficient to generally hold cattle
like those being pastured. Indeed, the only evidence we found of record was that
indicating a single strand of hot-wire was no less sufficient than a three, four, or five
strand barbed wire fence.
Evidence that the cattle were not trained to stay within the confines of a hot-wire
fence is also missing from the record, as is evidence that the cattle in question had
3
According to the witness to whom the question was asked, "bulling" indicates effort by a steer to
mount or breed with another steer. One should note that a steer is incapable of breeding.
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previously escaped from a hot-wire fence, that Sandhill knew the hot-wire fence was
inoperative before leaving the cattle, that Sandhill failed to inspect the hot-wire fence to
determine if it was operative, that Sandhill failed to periodically inspect the wire once the
cattle were left, that Sandhill knew the cattle escaped and did nothing, that Sandhill left
or allowed anyone to leave an opening in the hot-wire fence, or that there were too
many head of cattle on the 60 acres. Nor do we find evidence from anyone familiar with
cattle or their pasturing that can be read as criticizing the pasturing technique used
here.
Simply put, nothing of record supports a reasonable inference that Sandhill
breached § 143.074 of the Agriculture Code and permitted its cattle to run at large.
Consequently, the trial court did not err in granting the directed verdict.
Accordingly, the judgment is affirmed.
Brian Quinn
Chief Justice
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