This is an appeal from an order of the District Court of Webb County overruling the plea of privilege of defendant, H. E. Butt Grocery Company, a corporation domiciled in Corpus Christi, Nueces County.
Plaintiff, Elsa R. Perez, joined by her husband, filed this suit to recover for physical injuries suffered by her due to fright, emotional shock and physical exertion resulting from her encounter, in the City of Laredo, Webb County, with an elephant which had escaped from the parking lot of a grocery store operated by defendant in that city.
The first count of the petition alleges that defendant permitted or caused to be kept, on a parking lot controlled by it, an elephant, and failed to keep the animal, or cause it to be kept, in such a manner as would absolutely prevent injury to others. It was further charged that the elephant, after escaping from the parking lot of defendant and roaming two miles through the streets of Laredo, entered the back yard of plaintiff’s home, passing in close proximity to her, trampling a swing set where her children customarily played and, after crashing through a concrete wall, ran into an adjoining yard.
The second count of the petition, couched in terms of nuisance, alleged that the elephant was insecurely kept on defendant’s premises.
The petition recited that plaintiff’s injuries resulted from the failure of defendant to keep the elephant securely on its premises, and from defendant’s failure to capture the beast, or cause it to be captured, within a reasonable time after its escape.
Plaintiff seeks to maintain venue in Webb County under Subd. 23 of Article 1995, Vernon’s Ann.Civ.St., which provides, insofar as here relevant, that suit against a corporation may be maintained in the county in which the cause of action arose.
Defendant contends that plaintiff failed to show a cause of action arising in Webb County for each of the following reasons: (1) in the absence of allegations and proof of negligence on the part of defendant, plaintiff has no cause of action, since the rule imposing “strict liability” on the keeper of a dangerous animal is not the law in Texas; (2) the evidence will not support a finding that defendant was the “keeper” of the elephant; and (3) the evidence is insufficient to show that any act of defendant was the proximate cause of plaintiff’s injuries.
1. Liability of Keeper of Dangerous Animals.
We do not deem it necessary to decide whether the rule of strict liability applies to the keeper of a dangerous animal in Texas. 1 While plaintiff’s petition in this *579 •case does not use the word “negligence” it does charge that defendant failed to keep the elephant securely, or to cause it to be so kept. It is further alleged that, after the animal had escaped, defendant failed to recapture it, or to cause it to be recaptured, within a reasonable time.
If an animal which causes injury is one which long experience has shown to be, because of its species, naturally dangerous and ferocious, its keeper is conclusively presumed to have notice of its propensity to do harm. Copley v. Wills, Tex.Civ.App.,
It cannot be asserted that the keeper of an animal, known by him to be dangerous, is under no duty to’keep it securely, or that, in case of its escape, the keeper is under no duty to effect its recapture. The petition, then, clearly alleges a breach of duties owed by defendant to those who might reasonably be foreseen to be in the zone of danger should the elephant escape. Plaintiff’s petition sufficiently charges negligence on the part of defendant.
In any event, where a naturally dangerous animal escapes and does injury, allegations of the animal’s nature and of its escape are sufficient to establish a prima facie case of negligence. This was the precise holding in May v. Burdette, 9 Q. B. 101, 115 Eng.Rep. 1213, the case which is generally referred to as the origin of the doctrine of strict liability. In Congress & Empire Spring Co. v. Edgar,
The evidence in this case showed that the elephant escaped from premises, under the control of defendant and that, although one of defendant’s employees followed it in an automobile and kept it in sight, the animal eventually found its way into plaintiff’s yard, two miles from defendant’s store. This evidence was sufficient to warrant an inference of negligence. In Zuniga v. Storey, Tex.Civ.App.,
We conclude, without relying on the doctrine of strict liability, that the pleadings and the evidence were sufficient to support a finding of negligence on the part of defendant.
2. Defendant as "Keeper” of the Elephant.
The elephant in question was part of a carnival which began operating on defendant’s parking lot on Jan. 2, 1964, pursuant to arrangements made between the owner of the carnival and defendant at defendant’s home office in Nueces County. Defendant’s representatives in Laredo were ignorant of the details of the agreement between the carnival owner and defendant, and the record contains no evidence concerning the nature of such agreement. No representative of defendant took any part in the operation of the carnival. Defendant paid no money to the carnival owner, nor did defendant receive any part of the money realized from the carnival’s operation. Defendant, at its store, gave away “discount” tickets which were honored by the carnival. At night, the elephant was kept in a truck. During the day it was chained to a stake so that children could feed it popcorn and peanuts.
In answer to plaintiff’s request for admission, defendant stated that the purpose of having the carnival on the parking lot was to promote the business of defendant’s grocery store in Laredo.
The evidence is sufficient to show that defendant did not merely tolerate the elephant’s presence on premises within defendant’s control, but made arrangements for the animal’s presence there as a promotional scheme from which defendant hoped to derive some commercial or economic benefit. The fact that defendant, after actively procuring the presence of the beast on the parking lot, paid absolutely no attention to the manner in which the elephant was kept or to the measures taken to prevent its escape does not compel the conclusion that defendant was thereby relieved of liability. Defendant Was bound to know that the animal, from whose presence it hoped to profit, “was a dangerous animal which threatened injury to innocent people,” and the fact that defendant “closed its eyes to that condition is not a good defense to an action” by one who is injured by the animal. Serio v. American Brewing Co.,
3. Proximate Cause.
Defendant, relying on Carey v. Pure Distributing Corp.,
Plaintiff testified that about noon on the day the elephant escaped she was in the kitchen of her home preparing lunch. She heard her mother, who lived next door, screaming, but the only word she understood was “children.” Plaintiff ran out the back door, and when she reached the area between her home and that of her mother, the enraged beast charged past her. The animal trampled a swing set, ran into the yard of plaintiff’s mother, crashed through a concrete wall, and ran into an adjoining yard. Plaintiff ran back into her house, screaming for her children. Being unable to find them, she ran to her mother’s back yard, through her mother’s house, and out the front door. She saw the elephant emerge from an adjoining yard and go into a vacant lot across the street, where a small boy began to strike the animal with a broom stick. Plaintiff ran back into her mother’s house and called the police.
Plaintiff testified that, during the incidents she described, she was very frightened. As a result of her experience, plaintiff, who was in the third month of pregnancy, suffered a miscarriage.
From this evidence, it must be admitted that reasonable minds could draw the inference that at least a part of plaintiff’s distress was due to concern for the safety of her children and of the unidentified youngster who was beating the enraged and trumpeting elephant with a stick. However, it cannot be said, as a matter of law, that such concern for the safety of others was the sole cause of her mental distress. The enraged animal was on plaintiff’s land, passed in close proximity to her, and destroyed property belonging to plaintiff. In these circumstances, it is not unreasonable to conclude that plaintiff was placed in apprehension of suffering injury herself.
In the Carey case, supra, plaintiff had no reason to fear for her own safety. She was not even cognizant of the nature of the event which caused injury to her husband. The Carey opinion, whatever the undisclosed reasoning on which it is based, cannot be applied to a situation where the dangerous condition or activity threatens physical injury to plaintiff, as well as to others. Where plaintiff, being in the zone of danger, is placed in fear of physical harm, physical injuries resulting from fright are not too remote to satisfy the rule relating to proximate cause. Houston Electric Co. v. Dorsett,
Since, in this case, plaintiff herself was in the zone of danger, defendant’s contention amounts to no more than an argument that, before a defendant may be held liable, it must be held that he should have foreseen the precise manner in which the foreseeable harm occurred. Our Courts do not require such remarkable foresight. Biggers v. Continental Bus System,
The judgment of the trial court is affirmed.
Notes
. The cases relating to injuries by dangerous animals are collected in Anno: 69 A.L.B.. 500 (1937). A helpful analysis of these cases is found in McNeely, A footnote on Dangerous Animals, 37 Mich. B.Rev. 1181 (1939).
In those Texas cases where adoption or rejection of the strict liability rule has been necessary to the decision, the Courts of Civil Appeals have, with apparently only one exception, applied the rule which imposes strict liability on one who keeps a dangerous animal with notice of its propensity to do harm. Copley v. Wills,