RONALD G. COBLE, SR., and                      )
TAMARA L. COBLE,                               )
                                               )
       Appellants/Respondents,                 )
                                               )
       vs.                                     )    No. SD33713 and SD33722
                                               )         Consolidated
ROBERT CRAIG TAYLOR, and                       )
VIRGINIA GAIL TAYLOR,                          )    FILED: February 1, 2016
                                               )
       Respondents/Cross Appellants.           )

             APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                               Honorable Mark Powell, Judge

AFFIRMED

       Ignoring a lawful partition fence, Defendants’ bull Ferdinand crossed onto

Plaintiffs’ farm and got into their heifers, which were too young to safely calve. 1

Plaintiff Ron Coble mounted an ATV and, with his son, was directing Ferdinand

back home when the bull charged, flipped and got atop the ATV, pinning Mr. Coble

and injuring him.


1We refer to the parties in their trial court positions: Mr. Coble and his wife (who submitted and
recovered on a derivative claim) as “Plaintiffs” and the Taylors as “Defendants.”
          Plaintiffs sued under § 272.030, RSMo 2000, which obligates a livestock

owner to pay the true value of the damages sustained if his animal trespasses on

other premises by breaching any lawful fence.             Jurors found damages of $1.8

million and allocated fault 65% to Defendants and 35% to Plaintiffs, resulting in a

$1,170,000 judgment for Plaintiffs. Both sides appeal.

          Defendants raise two points. First, they argue that § 272.030 dates back to

Missouri’s 1808 Enclosure Act; cases long ago limited the statute’s application to

exterior fences; this was not an exterior fence; so § 272.030 did not apply. 2 Second,

they urge that damages for personal injury are not recoverable under § 272.030.

          Plaintiffs assert that comparative fault does not apply to § 272.030, a strict

liability statute, so they should receive all $1.8 million damages found by the jury.

          We deny all points raised and affirm the judgment.




2   The following definitions may aid the reader:
     Exterior Fence: One not within a common enclosure, such as a fence along a public
     road and any fence that is not a partition fence, division fence, or other interior fence.
     Partition Fence: A boundary fence between two landowners. It may or may not also
     be a division fence.
     Division Fence: A partition fence for which one adjoining landowner is legally
     obligated to maintain a designated portion and the other adjoining landowner must
     maintain the rest of the fence.
     Interior Fence: A partition fence wholly within a common enclosure, and thus not an
     exterior fence.
     Common Enclosure: Adjoining tracts fully enclosed by a continuous common fence.
See Robert V. Krueger, Fencing Laws in Missouri and Livestock Running at Large on Public
Roads, Mo. Farm Law, § 5.1 (3d ed. 2006); Craig R. Heidemann, Fencing Laws in Missouri:
Confusion, Conflict, Ambiguity and a Need for Change, 63 Mo. L. Rev. 537, 538 (1998); John H.
Calvert, Comment, Fencing Laws in Missouri-Restraining Animals, 32 Mo. L. Rev. 519, 519-20
(1967).

                                                    2
                       Fence Laws – Historical Background

      Common law imposed a strict duty to keep one’s stock from trespassing onto

land of another, effectively forcing an owner to keep his stock fenced, in a barn, or

tethered. Heidemann, 63 Mo. L. Rev. at 538-39. In the early U.S., many states

rejected this rule, as recounted in Buford v. Houtz, 133 U.S. 320, 327-28 (1890):

          Everybody used the open, uninclosed country which produced
          nutritious grasses as a public common on which their horses, cattle,
          hogs, and sheep could run and graze. It has never been understood
          that in those regions and in this country, in the progress of its
          settlement, the principle prevailed that a man was bound to keep his
          cattle confined within his own grounds, or else would be liable for
          their trespasses upon the uninclosed grounds of his neighbors. Such
          a principle was ill adapted to the nature and condition of the country
          at that time.

      Time passed, land became more closely settled, and the matter became largely

governed by statute:

          The first legislation to be adopted consisted of “fencing out”
          statutes, which provided that if the plaintiff properly fenced his land
          there was strict liability when the animals broke through the fence,
          but otherwise there was liability only when the owner was at fault.
          As the country became more settled, the conflict between the
          grazing and the agricultural interests resulted in many states in
          “fencing in” statutes, which required the owner of the animals to
          fence or otherwise restrain them, and made him strictly liable if he
          did not do so.

William L. Prosser, Torts § 76, at 497-98 (4th ed. 1971).

      Missouri’s “fencing out” law predates its statehood:

             The 1808 Enclosure Act, known as the “Open Range Act,” was
          Missouri’s first fence law and was enacted twelve years before
          statehood, while Missouri was merely a U.S. territory…. Under the
          Open Range Act, landowners were required to “fence out” freely
          pasturing livestock…. [It] impliedly vested livestock owners with the
          absolute right to pasture livestock upon a neighboring landowner’s
          land if the adjoining land was not enclosed by a lawful, non-

                                           3
             defective fence[,] … [and] must have made infinite sense to the
             inhabitants of the Missouri Territory in 1808, considering the vast
             expanses of unoccupied, unclaimed land.

Heidemann, 63 Mo. L. Rev. at 540-41.

          So in Missouri as elsewhere, initial “fencing out” or enclosure laws tended to

address exterior fencing around farms, then as time passed and farms multiplied,

later acts addressed interior fences between farms. 3 This understanding is key to

Defendants’ Point I theory that § 272.030, rooted in the 1808 Enclosure Act, applies

only to exterior fences, this bull crossed an interior fence, so Plaintiffs sued under

the wrong law.

                   Defendants’ Point I – Applicability of § 272.030

          We can summarize Defendants’ Point I argument in two steps:

             1. Stock trespass across non-division partition fences is subject to
                strict liability, but due to gaps in various fence acts, this is at
                common law, not under § 272.030. This proposition can be
                traced to Reddick v. Newburn, 76 Mo. 423 (1882). 4

3   Later Missouri fence acts included:
      •   The 1869 Division Fence Act, which also established a remedy for animal trespasses
          through a division fence. Calvert, 32 Mo. L. Rev. at 520.
      •   The 1883 Closed Range Act, or Stock Law, which was “almost identical to the English
          common law rule that animal owners are strictly liable for their animals’ trespasses.”
          Heidemann, 63 Mo. L. Rev. at 543. Initially a local option law, it was made
          applicable statewide in 1969. Id. at 544.
      •   The 1963 Fence Act, or “Local Option,” which abrogated the Enclosure Act and
          Division Fence Act in counties voting to adopt it (Greene County did not). Id. at 545.
      •   2001 changes to RSMo chapter 272 (SCS for H.B. 219, 91st Gen. Assem., 1st Reg.
          Sess.). With one exception inapplicable here, these have not been judicially
          interpreted. See Ferguson v. Ewing, 437 S.W.3d 821, 824 & n.4 (Mo.App. 2014).
4 From our research, other cases making similar statements eventually cite back to Reddick or

non-Missouri cases, or involve fence statutes unrelated to § 272.030, or both. That said, we do
not quarrel with cases indicating that early enclosure statutes were adopted with exterior fences
in mind. Our point, discussed infra, is that shortly after Reddick, the legislature broadened
that statute’s language and remedy to cover “the premises [not just enclosure] of another” and
“any lawful fence.”

                                                  4
          2. Statutory and common-law strict liability may be virtually
             identical, but Plaintiffs cannot recover on a theory they did not
             submit to the jury, so their verdict on the “wrong” basis for strict
             liability cannot stand. This finds support by analogy in Stock Law
             cases such as Jones v. Habberman, 67 S.W. 716 (Mo.App.
             1902), and Jackson v. Fulton, 87 Mo. App. 228 (1901). 5

      Step one of Defendants’ argument tracks the views of several commentators, 6

yet overlooks a statutory broadening shortly after Reddick. Current § 272.030 may

be a descendent of the statute cited in Reddick, but it is a changed descendent.

       The statute in Reddick (R.S. 1879, § 5653, see 76 Mo. at 425) applied by its

terms only if livestock broke “into any inclosure” properly fenced.

      Three years later, the legislature shed the term “inclosure” and extended the

statute to livestock breaching “any lawful fence” to access “the premises of another”

(Laws 1885, p. 166-67 (our emphasis)), which carries through, without material

change, to today’s statute under which Plaintiffs recovered, § 272.030:

          If any horses, cattle or other stock shall break over or through any
          lawful fence, as defined in section 272.020, and by so doing obtain
          access to, or do trespass upon, the premises of another, the owner
          of such animal shall, for the first trespass, make reparation to the
          party injured for the true value of the damages sustained ….”
          [emphasis ours].

      “Missouri Courts do not presume that the legislature enacts meaningless

provisions.” Parrott v. HQ, Inc., 907 S.W.2d 236, 240 (Mo.App. 1995). “When the

legislature amends a statute, the amendment is presumed to have some effect.”

Hagan v. Director of Revenue, 968 S.W.2d 704, 706 (Mo. banc 1998). In


5 While ours is not a Stock Law case, we assume arguendo that we likewise must reverse if
§ 272.030 cannot fit Plaintiffs’ claim.
6 See Krueger, Mo. Farm Law at § 5.23; Heidemann, 63 Mo. L. Rev. at 551; Calvert, 32 Mo. L.

Rev. at 530-31.

                                            5
deciding the amendment’s effect, “the Court looks to the words used in the statute

and the plain and ordinary meaning of those words.” Id. We also may consider the

circumstances and conditions “existing at the time the change was made.” Parrott,

907 S.W.2d at 240.

         Under these interpretive principles, we may and perhaps must reject

Defendants’ argument as wrong, or at any rate, unsupported by Reddick and

unpersuasive given § 272.030’s plain words. Either way, the point fails and we need

not address other arguments against it. We deny Defendants’ Point I.

   Defendants’ Point II – Personal Injury Liability for Animal Trespass

         Defendants urge that § 272.030, as a trespass law, cannot support recovery for

personal injuries. They admit that no reported Missouri case addresses the specific

issue.

         Most cases from other states appear to run against Defendants’ position. See

Annot., Liability for personal injury or death caused by trespassing or intruding

livestock, 49 A.L.R.4th 710 (accessed electronically). So does § 504 of both the first

and second Restatement of Torts.

         Defendants quote and argue a small part of Restatement (Second) § 504, but

disregard other portions and official comments that undercut their point.

         For example, to quote Restatement (Second) § 504 somewhat more fully,

livestock trespass liability “extends to any harm to the land or to its possessor or a

member of his household, or their chattels, which might reasonably be expected to

result from the intrusion of livestock,” but not for harm “not reasonably to be

expected from the intrusion.” Id. at (2), (3) (our emphasis).

                                            6
       Defendants also ignore this particularly relevant official comment:

               In determining whether particular harm to the land or to chattels
           on it or to the person of the possessor or of members of his
           household is of a kind that might reasonably be expected to follow
           from the trespass, account must be taken of the natural propensities
           of the particular kind of animal. Thus any trespassing bull may be
           expected to attack and gore any other animal or any person who
           gets in his way. It is reasonably to be expected that efforts will be
           made by the possessor of the land or the members of his household
           to expel, capture or restrain the intruding animal, that the efforts
           will be resisted, and that harm to person or land or chattels may
           result.

Restatement (Second) of Torts § 504, Comment g. (our emphasis).

       Further, Defendants omit mention of this illustration:

              Without any fault on the part of A, his cow escapes from his land
           and wanders into B’s garden. B attempts to drive the cow out of the
           garden. The cow resists, attacks B, knocks him down and breaks his
           arm. A is subject to liability to B for the trespass to the land, the
           damage to the garden, and his bodily harm.

Id. at Illustration 1 (our emphasis).

       Plaintiffs are correct to observe that Restatement (Second) § 504, when read

in its entirety, “defeats, rather than supports, the Defendants’ argument.”

Defendants’ other arguments fare no better. 7 Absent Missouri authority, we decline


7 To cite one further example, Defendants urge that “under Missouri law, it is well settled that
there can be no strict liability against a livestock owner whose animals cause personal injury
absent proof that the owner was on notice that the animal possessed abnormally dangerous
propensities,” citing as case support Duren v. Kunkel, 814 S.W.2d 935, 937-38 (Mo. banc
1991), and Alexander v. Crotchett, 124 S.W.2d 534, 537 (Mo. App. 1939). The adequate reply
is that Duren and Alexander were not animal trespass cases. Further, the following
Restatement quote by our supreme court, to support its Duren decision, shows animal trespass
was not at issue:
     Except for animal trespass, one who possesses or harbors a domestic animal that
     he does not know or have reason to know to be abnormally dangerous, is subject
     to liability for harm done by the animal if, but only if ... he is negligent in failing
     to prevent the harm.
Duren, 814 S.W.2d at 938-39 (quoting Restatement (Second) of Torts § 518; our emphasis).

                                               7
to ignore Restatement guidance, the weight of cases nationwide, and most

importantly § 272.030’s plain statutory directive that the animal owner “make

reparation to the party injured for the true value of the damages sustained ….” Point

II fails.

                   Plaintiffs’ Cross-Appeal – Comparative Fault

        Comparative fault in accordance with the Uniform Comparative Fault Act

applies to Missouri cases insofar as possible. Gustafson v. Benda, 661 S.W.2d 11,

15-16 (Mo. banc 1983). The trial court instructed on comparative fault, resulting in a

35% reduction in the award, all over Plaintiffs’ objection that comparative fault does

not fit strict liability, a claim they renew on appeal and we reject.

        Lacking direct case-law support, Plaintiffs argue primarily from Lippard v.

Houdaille Industries’ short-lived product-liability exception. 8 This does not

persuade us for two reasons: (1) the legislature statutorily abrogated Lippard

almost immediately; and (2) this is not a products liability case.

        Plaintiffs’ plea that Defendants’ liability is strict, not negligence-based, also

fails per the UCFA and comments that our supreme court appended to Gustafson:

            “‘Fault’ includes acts or omissions … that subject a person to strict
            tort liability.” UCFA § 1(b). Gustafson, 661 S.W.2d at 18.

            “Although strict liability is sometimes called absolute liability or
            liability without fault, it is still included.” Commissioners’
            Comment, UCFA § 1. Gustafson, 661 S.W.2d at 19.

            “For certain types of torts … the defendant’s conduct may be
            intentional, negligent or subject to strict liability. In the latter two

8See Lippard v. Houdaille Industries, Inc., 715 S.W.2d 491 (Mo. banc 1986), abrogated
by RSMo § 537.765 effective July 1, 1987, as recognized in Egelhoff v. Holt, 875 S.W.2d 543,
547 (Mo. banc 1994).

                                               8
           instances the Act would apply, but not in a case in which the
           defendant intentionally inflicts the injury on the plaintiff.”
           Commissioners’ Comment, UCFA § 1. Gustafson, 661 S.W.2d at
           19. 9

       We need not belabor the issue. The UCFA would apply comparative fault here.

Missouri courts are to apply comparative fault per the UCFA insofar as possible.

Gustafson, 661 S.W.2d at 15. Point denied. Judgment affirmed.


DANIEL E. SCOTT, P.J. – OPINION AUTHOR

JEFFREY W. BATES, J. – CONCURS

MARY W. SHEFFIELD, C.J. – CONCURS




9This observation defeats Plaintiffs’ effort to distinguish between strict liability and negligence-
based animal trespass claims for comparative fault purposes. No one claims, in the Comment’s
words, that “the defendant[s] intentionally inflict[ed] the injury on the plaintiff[s].”


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