Tuesday, November 6, 2007

Bosley v. Andrews

393 Pa. 161, 142 A.2d 263 (Pa. 1958)
MUSMANNO, Justice (dissenting).
Like those human beings who believe that fame and fortune always lie in some land distant from their own, the cows of the Dale Andrews farm in West Salem, Mercer County, were not satisfied to browse and chew their cuds in their own pasture. They were certain that in the fields across the highways which bordered their owner's domain, the grass was greener, the earth fresher, the trees shadier, and the skies above bluer. Thus from time to time they would leave their own preserves and invade the Bosley farm on the other side of the road where, with the spirit of bovine buccaneers, they devoured their neighbor's corn and wheat, destroyed his vegetable gardens, knocked over young peach trees, damaged the apple orchard, mangled berry bushes, and eventually departed, leaving behind them a wide swath of ruin destruction. They sometimes went away of their own accord, but frequently they had to be driven back to their home territory by the Bosleys.

On the morning of April 10, 1950, at about 9 o'clock they ambled over to the Bosley farm to breakfast in the fields which were the scene of former invasions but before they reached the regurgitation stage, Mrs. Evelyn Turner (married daughter of the Bosleys), assisted by a trained cattle dog, which was half collie and half of indeterminate breed, headed them off and sent them mooing back to their own pastures. By noon, however, they forgot their defeat of the morning and decided to visit the Bosleys for lunch. This time they came, eight of them, with reinforcements. They brought along their boy friend, a 1500-pound Hereford white-faced bull.

Inspirited and encouraged by their horned escort, the female bovines overran the peach trees and apple orchard when Mrs. Turner, who was in the field with her 6-year old son and the dog, sounded the alarm to her mother, Mrs. Bosley, then in the house. Mrs. Turner at once rang up the Andrews on the telephone to tell them to call off their cloven-hoofed trespassers, and then hurried outside to assist her daughter, not knowing of the presence of Mr. Hereford. Mr. Hereford and Mrs. Bosley saw each other at the same time. Mrs. Bosley screamed, and the truculent Hereford lowered his head to charge. Terror-stricken, Mrs. Bosley tried to run, but, as in a bad dream one cannot flee although disaster is at one's heels, she froze to the spot. As she later described the agonizing moment:

‘I turned around and looked, and he was coming at me with his head down, and I started to run, but I thought I could not get my legs to go and I choked up and I collapsed, and momentarily, I thought he was going to get me, I could just even feel that he was on top of me.'

In the meantime, the collie-mongrel dog, who was to become the unwreathed hero of the episode, bounded into the space between the bull and the terror-stricken woman. The bull then, as dull-witted as his brothers in the shouting arenas of Spain who pursue an innocuous red rag, took after the dog, and Mrs. Bosley was saved from a leaden-footed torreador's end.


Since the doctors have stated categorically that Mrs. Bosley's heart disability is the direct result of the bull's aggression, and since it is conceded that the bull's presence on the Bosley property constitutes an almost wanton trespass, it is inexplicable how this Court can legally dispose of a controversy which is peculiarly one for a jury's determination. The explanation offered in the Majority Opinion does not explain. To say that to grant what the law allows in this case might create an untoward situation in other cases is like saying that the fountain of justice should be boarded up because of the possibility that someone might drown in its salutary waters.

I would have the fountain flowing at all times, assured that the established safeguards of the law will keep away those who would defile its pure and refreshing essence just as those same safeguards are prepared, if not shackled, to hold responsible those who allow ferocious animals to roam at large to the hurt and grievous loss of the innocent and the unsuspecting, in the tranquil enjoyment of their homes, their gardens, and the prospect of a safe and cloudless future.

In recapitulation I wish to go on record that the policy of non-liability announced by the Majority in this type of case is insupportable in law, logic, and elementary justice-and I shall continue to dissent from it until the cows come home
The rest of the dissent is equally brilliant, including an extended quotation from Shakespeare (King Richard II, Act III, Scene iii). I cannot recommend highly enough that you read the whole text, though I think Blogger would explode if I tried to post it here.

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