*1 560 State, (1949) of arrest. v. 227
point Suter 386; State, 648, Dearing v. Ind. BLAKE, Appellant, Alan Robert I, (1950) N.E.2d Art. 95 seen, As can Indiana Constitution. FARMS, INC., Appellee. DUNN Fourth, solely upon it is not based Sixth and Fourteenth Amendments the United No. 1280S431. Constitution as Schneekloth. States of Indiana. Supreme law, a right by Indiana to confer Under law, everything necessary is also to confer Dec. although specific men- protection, for its is made. tion of added measures Batchelor State, 189 Ind. N.E. 773. unnecessary to deal with the
We find appeal in this there is
other issues raised will they
little likelihood that reoccur trial.
a new The conviction reversed. PRENTICE, JJ., concur.
HUNTER
PIVARNIK, opinion dissents GIVAN, J.,C. concurs.
PIVARNIK, Justice, dissenting. majority opinion here
I dissent knowingly
in that I feel defendant Sims did voluntarily rights in giving waive police.
the consent to search companion
This is case Albert Larkin Indiana, (1979) - Ind. -,
v. State unanimously
N.E.2d where we af
firmed Larkin’s and found that conviction very proper same search was and that
Sims, police, giving his consent to had any rights
waived he had. Larkin at case,
tempted, in his have the evidence
suppressed, based on the fact that Sims’
consent to search not valid. We said circumstances, light “In
therein: of these
we hold that Sims’ consent search was appellant
valid therefore cannot have
the evidence the search obtained
suppressed that basis.” majority would be direct con- here with that we were cor-
flict case. I think vote affirm
rect in Larkin and I would
the trial court here.
GIVAN, J.,C. concurs.
Kennerk, Dumas, Burke, Backs, Long & Salin, C., E. Wayne, Robert P. Fort Wabash, Bostwick, appellant. DeTrude, Jr., Gray, Howard J. Mark D. Tamulonis, Peter Kightlinger, G. Young, DeTrude, Gray Indianapolis, & for appellee. TO ON PETITION TRANSFER PIVARNIK, Justice. to us on petition
This case comes to transfer from the District Court Second Appeals. appeal Plaintiff Robert Blake judgment ed from entered in summary favor of Defendant Dunn Inc. The primary issue in case was the persons the landowner on an road, particularly duty ap as that plies ownership of do addition, procedural mestic animals. In appeal presented issue was raised on and is regarding to us here on transfer the fact judgment pur that the the trial court by ported judgment pleadings to be a as 12(C). 12(C) set forth in Ind.R.Tr.P. Rule provides that when matters other than pleadings those in the are considered court, trial the determination is then trans summary judgment. formed into a judgment was so considered Appeals. This case remained in the trial stages pleading approx court in various imately years. four Plaintiff Robert Blake summary judgment had filed a motion for early proceedings, on in the and the court overruled the motion at that time. After the case for trial and the issues had was set early by pleadings, been established judgment defendant filed a motion for 12(C). pleadings under Trial Rule All parties agreed that the court consider could pleadings, depositions, affidavits and in terrogatories parties filed to deter mine did this motion. The court consider making all of these documents in its deter mination, judgment in favor of and entered with agree We the Court defendant. 12(C), Rule that under Trial court, depositions, affida considering vits, treated the motion interrogatories, and entered summary judgment one therefore, judgment accordingly; the case March, 1972, McConnell and his wife appeal reviewed on on that ba properly vacated presents sis. were divorced. He We further find that this on as the Mrs. lessee stayed McConnell public import an such issue of Love, new un- agreement and made a ac judgment on it. We pass Court should rent paid per- he der which additional grant vacate the cordingly transfer *3 June, 1972, In formed certain services. This opinions Appeals. of the of Court Auler, Clarence Mrs. McConnell married is original opinion to the applies vacation lived she and her husband on the and new on November sued the Court of by August 29, 28 or property as lessees until Farms, Inc., 5, 1979, Blake v. Dunn Dunn paid rent to Farms 1972. She opinion on Ind.App., 396 N.E.2d and October, Dunn 1972. Farms and January Rehearing issued on Petition for agree upon to Aulers were unable 22, Farms, Inc., Ind. Blake v. Dunn lease, property left the on and the Aulers App., 399 N.E.2d Love to Apparently continued that date. on great dispute There is not a deal in ponies the west his horses and maintain was a of this case. Blake facts Plaintiff pasture. which struck a passenger in an automobile or more stockholders and offi- One on a night. at The occurred horse accident trips made to Indiana for cers occasional portion running through a state highway were in purposes. They Marion severely injured Dunn’s land. Plaintiff was October, 1970, in and in and twice Love, against and the owner brought action August, president secretary 1972. The and horse, the land- and Dunn on of Dunn Farms to Indiana Novem- came complaint The that Dunn alleged owner. 18, 1972, to the on ber and went negligent allowing and were Love in succeeding day, to day that and each and disrepair, and fences to fall into a state of including the November day of per- in negligent that Dunn and Love were Their purpose when this accident occurred. right- a horse to run on the state mitting to being up was clean for of-way highway. and arrangements buildings and make corpo- a family-owned Dunn Farms was property. There find a new renter for the ration, residing in Arizona. the officers that, trips evidence in their was The for the manager attorneys farm and area, one or more building house and of the Marion, corporation were Indi- (Dunns) located horses some in the owners saw ana, leasing agents supervised and these fields. In Robert property. about summary The entered judgment barn, house, McConnell rented the here based on Dunn Farms’ trial court was highway. of the property on both sides who is that landowner neither contention of the were Seventeen acres owner not of a horse custodian cannot Fifteen, Highway the west side of State held liable the al- remaining property, including the and the large running at of such leged escape barn, was on the east side house and The court that mere own- horse. reasoned farming en- Along with other ership of land serve as a cannot basis deavors, kept pas- in the horses McConnell The evidence liability. uncontroverted June, 1971, McConnell and ture fields. was neither the showed that Dunn Farms pasture agreed that Love would Love nor the horse owner custodian pasture. Love main- west horses relation to such question, had material pasture ponies in the west tained horses and horse, relation to the and had material 1972, including the date of during 1971 and Although horse. owner-keeper of such herein, 21, 1972. November incident Love’s horses had that there evidence before, paid to McConnell
Love claims he cash rent pastures been out or the there exchange for the owners had performed services in Farms’ no evidence right knowledge incidents. pasture his animals. of these Thus, has the of the owner keeper of an animal provide for the responsibility him keeper animal of that restraining and confinement animal. confined, or owner possession and the mere presented been Those cases which have ship strays of land from which an animal were, fact, on the basis this issue decided liable, landowner not sufficient to make the responsibility this keeper is not long so as the landowner See, g., confinement of the animal. e. always of such This is and has animal. Lee, Thompson (1980) Ind.App., 402 been the law in Indiana. See Cook v. Mor Smith, (1954) N.E.2d 1309. In Corey ea, (1870) 33 497. If the landowner is Ind. fol keeper, he has no neither the owner nor affirming judg lowed that rule of law in If duty to confine or restrain the animal. against Corey. Corey ment defendant escape its an animal is allowed Harvey bull from angus rented a black results, harm *4 from its confinement and Case, named as a who was also defendant in negligent the confine damage results from the While the bull in Corey lawsuit. ment, the condition of the land. not from possession, escaped his it its enclosure and condition of the land To the extent that the highway adjacent was on and about the to or unsuitable for con inadequate made it Corey the land. There was evidence that finement, selecting for an responsibility the knew of this cause yet did not the bull upon of confinement is method adequate highway safely to be removed from the upon the landowner who keeper, the not The bull returned to its enclosure. was vehicle, kept struck neither owned nor the animal. See plaintiff’s Co., damages resulting (9th accident and to her were Grigg v. Pacific Cir. Southern Corey’s responsibility. therefore found to be denied, 1957) 246 F.2d reh. 248 F.2d A for directed verdict was entered Case at 949; Willis, (1968) Ill.App.2d 94 Heyen v. plaintiff’s the close of the evidence. The generally 59 A.L. N.E.2d 580. See 236 court was Corey responsible found that 4 Am.Jur.2d Ani R.2d because of damage plaintiffs caused to mals, allowing negligence angus in bull large, noting under his care to run at that it in the The fact that Dunn was cause of ac plaintiff’s not essential to officers, had person of one or more of their tion to establish that the anus was vicious field on casually horses in the observed propensity or had a attack automobiles. to duty no in them to property their created gentle dog, “He could have been as a cat or might escape the horses be concerned that yet pounds seven hundred of black animal thus, Dunn Farms had injury; and cause on a a black-top highway state constituted guard prevent or action to duty to take nighttime traveling menace in the First, of against such an occurrence. public.” at 412. Id. at N.E.2d course, in field do animals a farm domestic in effect in Notably, there was a statute situation, one present not an unusual or provided Indiana at that time that for a dangerous con which causes concern that a any person owning criminal or penalty might present, be such that we can dition mules, cattle, horses, sheep, goats harboring person to make an im expect a reasonable swine, animals to roam at permit or to such deter property of the inspection mediate of the or to large upon highways State properly fenced to mine if the enclosure is upon feed or the lands pasture Moreover, in prevent eventuality. such an of this statute Corey’s another. violation us, terms of the the case before under the negligence per se in was found to be Farms had with these ten lease that Dunn Today the law against Smith’s action him. ants, keep place tenants were to responsible person in Indiana states that “A Additionally, fences. repair, including the recklessly per for a domestic animal who contemplated Farms a that Dunn appears it large mits the commits a animal to run at require did not property use of class B 15-2.1- misdemeanor.” Ind. Code § Farms was not (Burns fencing, 21-8 since Dunn Supp.). person on an of a landowner duty property. use on the any animals for its land- of a adjacent to a road similar to that belonged sub-tenant These animals Farms was leas- the tenant to which Dunn owner to business invitee. knowledge ing. property Dunn Farms had owner to an invitee fences, and had no relationship of the bad condition burden an extra based on their inspect to determine reason to them the land to the occupier of the owner or above, fact, noted under condition. the benefit of the owner one invites for he lease, the tenant of McConnell’s terms Virtually every piece occupier. or useable including the adja- the State of Indiana is repair. usable fencing, good or The road is roadway to a cent ingress egress a means common do bring not The facts this highways, properties along all set in Pitcairn White within the rule out other owner all side, Ind.App. (1941) 109 does not particular A landowner owners. of a was held to where it using highway for persons invite all adjacent highway to a property owner or to make that' use prevent purposes care to their own exercise reasonable highway defective or dan property’s part caused traverse that gerous danger condition. The defective property. to his own heavy ous condition in Pitcairn smoke Therefore, holding in Siegel portion of going across the traveled (1945) 184 Corp., 1536-46 John’s St Place railroad, highway, through its *5 1054-55, 57 Misc. N.Y.S.2d right-of- employees, burning off the Appeals, has no relied on the Court of case, in that the way. emphasize We that applicability Siegel, to this case. the dangerous causing railroad the itself corporate of defendant was a landlord upon that visited itself the trav condition apartments corporation employ a portion highway. the This condition eled one of dog ee that harmed kept a vicious smoke, across which billowed heavy Liability was based on the use tenants. because roadway that collided so drivers relationship between the land and see other vehicles they could not corporate own damaged party case, dangerous the smoke. In that er, ownership of the land. merely on not through condition existed for several hours McDade, (1974) in Parr v. The is true same part out the day, with no effort on the Ind.App. where employees flag moving the railroad down relationship, a tenant parties had landlord smoke, vehicles approaching or fire was damage to a tenant way to dangerous warn them of the condi employee on the landlord’s tion. & premises. also Fletcher v. Baltimore See Though agree we with the decision in 135, 18 35, 42 Co., (1897) P. S.Ct. R. 168 U.S. Pitcairn, way parallels that case in no It a L.Ed. 411. is well settled that facts and circumstances in the case before he in higher duty invitor owes to those a Here, us. the owner of the he owes to one vites than prob- relationship agency causing who is a or Ham trespasser a licensee. lem, and duty investigate to deter- Allegretti, (1974) 262 mond v. if problem, emergency, mine there was a N.E.2d 821. dangerous condition. To hold otherwise reasons, opinions place duty foregoing owner to For all the would on perimeters of his vacated and the continually inspect Appeals are Court along an particularly trial court affirmed. dangerous that highway, to make sure con- GIVAN, J., and PREN- HUNTER C. traveling ditions do not arise for those TICE, JJ., concur. DeBRULER, J., separate Further, reject we dissents totally must opinion. conclusion of the that the Court
DeBRULER, Justice, dissenting. Indiana on the relation of STATE Farms, Inc., was in the business of SCOTT, Relator, Craig Allen enclosing fenced lots for renting farms with The lot from which domestic animals. rented escaped animal in this had been COURT, SUPERIOR ST. JOSEPH let it to a sub-tenant. to a tenant who had Kopec, Judge Norman Honorable and the lot and fences tenancy expired Thereof, Respondents. taking it Upon were surrendered to Dunn. ani- back Dunn discovered that domestic No. 580S156. mals had been left the lot the former of Indiana. enclosing Supreme tenant. The fences the lot had strayed become deteriorated and an animal Dec. public thoroughfare across them into the causing passer-by. to a At severe
common law the owner or of domes- having propensity
tic animals to rove Myers
have a to confine them.
Dodd,
Morea,
(1857) 9 Ind.
Cook v.
recently
domestic animal.” Ind. Code 15-2.1-21- 15-2-4-21,
8. Also Ind. now re- Code §
pealed.
Dunn, and fences occupier land strayed
at the time the animal into the authority repair road had It had
fences or remove the animals.
charge of the land which the animals
stood, the fences which served to enclose
them, ingress egress of the lot and
thereby availability food
water to them. It knew the animals were
present. It was therefore control
charge of them. As far as the
concerned, Dunn should be considered the strayed of the animal which into the
path plaintiff’s car or the alterna- responsible
tive Dunn was for the animal. majority
I cannot therefore concur with the legal duty protect
view propensities.
others its natural other concerned citizens
Neighbors and go on the Dunn lawfully
could not repair animals and
to feed and water the straying them from
the fences so as to
onto the road. These were not domestic strayed
animals which had onto the Dunn They adjoining
land from lands of others.
were not animals. These were domes- wild dangerous by-product
tic animals left as a of the rental business of the Dunn Jr., Mishawaka, for re- Douglas Seely, D. easily rendered harmless controlled and proper fencing. care and lator.