FILED

February 5, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

 IN THE COURT OF APPEALS

AT KNOXVILLE

MANUEL BRANCH, JR., ) KNOX CIRCUIT

 ) C. A. NO. 03A01-9709-CV-00385

 Plaintiff-Appellant )

 )

 )

 )

 )

 )

vs. ) HON. DALE WORKMAN

 ) JUDGE

 )

 )

 )

 )

 )

RODNEY McCROSKEY and GOVERNOR ) AFFIRMED AND REMANDED

JOHN SEVIER MEMORIAL )

ASSOCIATION, )

 )

 Defendants-Appellees )

ROBERT L. OGLE, JR., Ogle & Wallace, P.C., Sevierville, for

Appellant.

BRIAN H. TRAMMEL, Kennerly, Montgomery & Finley, P.C., Knoxville,

for Appellees.
2

O P I N I O N

McMurray, J.

I n th is action, the appellant (plaintiff) sought a recovery

f o r d amages sustained to his pickup truck, lost earnings and

related expenses caused by a collision between his vehicle and a

horse belonging to the defendant, Rodney McCroskey. The accident

occurred in the plaintiff's lane of travel on a public road,

generally referred to as the Governor John Sevier Highway. The

defendant, Rodney McCroskey, fil ed a c ross-claim against the

defendant, Governor John Sevier Memorial Association. He, however,

was permitted to take a voluntary non-suit. The case was tried

before a jury and resulted in a verdict for the appellees (defendants) in the original action. Judgment for the defendants was

duly entered on the verdict. The plaintiff filed a motion for a

judgment notwithstanding the verdict (JNOV) or in the alternative

for a new trial. The m o tion was overruled and this appeal

resulted. We affirm the judgment of the trial court.

For his cause of action, the plaintiff alleged that at about

5 : 3 0 a. m., he was traveling in his pickup truck on Governor John

Sevier Highway when he struck a horse, which was in his lane of

travel, resulting in damages to his vehicle. He asserted that the

horse was owned by the defendant, Rodney McCroskey and that the
3

horse had been taken to the Governor John Sevier Association's

corral for the purpose of allowing the association to display the

horse along with another horse. He claims that the defendants were

negligent in p lacin g the horses in a corral which consisted of a

two rail wooden fence and that the fence was in violation of the

"fence law of the State of Tennessee as contained in T.C.A. § 44-8-

101, et seq ." He further charged negligence, claiming that

McCroskey knew or should have known that the corral and fence

enclosure in which he placed the horses was grossly inadequate and

could not reasonably be expected to hold the horses; and that

further he knew or should have known that he was in violation of

the fence law. As to the defendant, Governor John Sevier Memorial

Association, he alle ged that the defendant, as lessee of the

property on which the corral was located, assumed responsibility in

housing the horses and knew or sh ould have known that the corral

was not reasonably adequate to maintain the horses.

From the adverse judgment, the plaintiff perfected his appeal

t o this court. On app eal, the plaintiff claims that the court

erred in failing to ent er a JNOV pursuant to Rule 50, Tennessee

Rules of Civil Procedure ; for failure to direct a verdict at the

conclusion of all the proof; there was no material evidence to

support the judgment in favor of the defendants and that the court

erred in not permittin g pl aintiff's counsel from cross examining

the defendant, McCroskey, concerning the allegations of negligence
1

The record does not reflect that a motion for a directed verdict was eve r

made during the trial.

4

against his co-d efenda nt in his cross-claim. He further charges

the court with error in reprimanding plaintiff's counsel during

final argument for stating that the plaintiff had no collision

insurance. Additionally, he claims that the court should have

given his special request for a jury instruction regarding T.C.A.

§ 44-8-103, et seq .

Where, as here, a trial judge has approved a jury's verdict,

our standard of review is whether there is any material evidence to

support the verdict. T.R .A.P. 13(d). Thus, absent a reversible

error of law, we will set aside a judgment on a jury verdict only

where th e reco rd contains no material evidence to support the

verdict. Foster v. Bue , 749 S.W.2d 736, 741 (Tenn. 1988). 

Most of the issues are interrelated and we will discuss them

together. Both a directed verdict or a JNOV are subject to the

same analysis. 1 In deciding whether to grant a directed verdict or

a JNOV, the trial court must take the strongest legitimate view of

the evidence in favor of the non-moving party and discard all

countervailing evidence. See Eaton v. McLain , 891 S.W.2 d 587

(Tenn. 1994).
5

To receive the benefit of a directed verdict in his favor, a

plaintiff must first make out a prima facie case. Therefore, it is

incumbent upon us to first determine whether the plaintiff carried

his burden.

I t is an elementary principle of law that the plaintiff has

the burden of proof on all issues necessary to establish his claim.

The burden of proof is on the party having the affirmative of an

issue and this burden never shifts. Freeman v. Felts , 208 Tenn.

201, 344 S.W.2d 550, 554 (1961). "The burden of proof rests on him

who affirms, not on him who denies." Galbreath v. Nolan , 58 Tenn.

App. 260, 429 S.W.2d 447, 450 (1967). Therefore, the defendant

bears no burden of proof unless an affirmative defense is asserted.

Even if an affirmative defense is asserted and there is no material

evidence to support it, the plaintiff is not entitled to a judgment

unless the plaintiff has carried his initial burden of proof, i.e. ,

proof on all issues necessary to establish his claim. "... in any

negligence case, the plaintiff must prove by a preponderance of the

evidence the existence of a duty, a breach of that duty, causation

and injury." Lindsey v. Miami Development Corp . , 689 S.W.2d 856,

858 (Tenn. 1985). If the plaintiff has failed to carry his burden

in this case, all other issues are moot.

The plaintiff relies heavily upon T.C.A. §§ 44-8-101, et seq .

I t appears that title 44, Section 8, Part 1, et seq ., were adopted
2

There is an apparent exception for notoriously mischievous stock. See T.C.A.

§ 44-8-109. There are no allegations or evidence in the record in this case that

the horses in question were notoriously mischievous.

6

when Tennessee was still an "open range" state. T his being the

case, it was incumbent upon a landowner to have a lawful fence

around his property in cultivation to keep animals out rather than

in. Before a planter or cultivator could recover damages from an

owner of an animal at large, he was under a duty to establish that

h e had a lawful fence surrounding the damaged property. This

conclusion is reached by reading the provisions of Title 44 ,

Chapter 8, Title 1 in para materia . Exemplary provisi ons a re as

follows:

44-8-101. Land in cultivation sufficiently fenced. —

Every planter shall make and keep a sufficient fence, of

ordinarily sound and substantial material, around the

planter's land in cultivation, and so close, for at least

two and one-half feet (2 1/2') from the surface of the

earth, as to prevent hogs large enough to do damage from

passing through the same.

44-8-107. Defense of insufficiency of fence. — If it

appears that the fence is insufficient, the owner of the

animals shall not be liable to make satisfaction for the

damages. 

Thus, under the statutes at the time of their adoption, a

landowner seeking damages from the owner of an animal, had the

burden of maintaining a lawful fence. 2 Never thel ess, however,

Title 44, Section 8, Part one has some application under the
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circumstances of this case since the General Assem bly by Public

Acts 1947, ch. 52, § 1, now codified in T.C.A. § 44-8-401 prohibited livestock from running at large. That section provides as

follows:

44-8-401. Livestock not to run at large - Punishment. —

(a) It is unlawful for the owners of any livestock, as

the same are commonly known and defined, to willfully

allow the same to run at large in this state.

* * *

The applicable Section of Title 44, Chapter 8, now codified in

T.C.A. § 44-8-103 which provides as follows:

44-8-103. Horses, cattle, and mules sufficiently fe nced.

— The following shall be s uffici ent and be deemed a

lawful fence only as to horses, cat tle, a nd mules: any

enclosure made by stretching not less than five (5)

strands of barbed wire tightly between posts firmly set

i n the ground, or between growing trees and posts firmly

set in the ground, not more than twenty feet (20') apart;

the topmost wire not less than four an d one-half feet

(41/2') from the ground, the bottom wire not less than

six inches (6"), and the next to the bottom wire not less

than fifteen inches (15") from the ground.

After the passage of the above statute, the burden of

maintaining sufficient fences was placed upon the owner of

livestock. The governing rule in this jurisdiction is where an

owner of animals neglig ently allo ws them to run at large, he is

liabl e for the resulting damages if proximately caused by his
3

I t was held that a violation of T.C.A. § 44-8-103 was not negligence per se

in Rodgers v. Webb , 335 F. Supp. 584 (E.D. Tenn. 1971).

8

negligence but h e is not liable if an animal escapes without his

fault fr om a pasture enclosed by a lawful fence or an ordinary

fence which is usually required to restrain that particular kind of

livestock. See Moon v. Johnston , 47 Tenn. App. 208, 337 S.W.2d

464 (1959). 

The plaintiff would have us find that a violation of T.C.A. §

44-8-103 is negligence per se. Construed in con juncti on with

T.C.A. § 44-8-401 and the rule stated in Moon , supra, reason

dictates that such a violation cannot be negligence per se since it

i s optional to have a "lawful fence" or an ordinary fence which is

usually required to restrain that particular kind of livestock. 3

I n the record before us, there is evidence that the defendants

did not maintain a "lawful fence" as defined in T.C.A. § 44-8-103,

however, the record is completely devoid of any evidence that the

corral fence was not a fence usually required to restrain horses.

O n the contrary, there is eviden ce that the defendants inspected

the fence and found it suitable to contain horses. There is no

dispute about the const ruction of the fence. It consisted of a

split rail fence, with two rails between each pos t. There is

testimony by the plaintiff tha t the top rail of the fence was

thirty to thirty-two inches high. There was also testimony by the
9

defendant McCroskey that he checked the corral and had no concerns

about putting his horses there. Further, when asked if he woul d

consider the fence a su bstantial fence, he responded that "I

figured it would be secure enough to hold my horses." He also

testified that the fence was a type of fence that might be used to

corral horses in this state. This testimony is uncontroverted.

From the foreg oing , it seems patently clear, that the

plaintiff was neither entitled to a directed verdict nor a JNOV.

O n the contrary, it appears that he failed in his burden of making

a prima facie case. In any event there is material evidence to

support a verdict in favor of the defendants.

While the foregoing conclusion is seemingly dispositive of the

case, we will nevertheless direct our attention to the issues not

involving a motion for a directed verdict, JNOV or sufficiency of

the evidence.

Plaintiff complains that the court erred in not permitting

plaintiff to cross examine the de fendant, Rodney McCroskey,

relative to the non-suit he ha d taken on McCroskey's cross-claim

against Governor John Sevier Memorial Association. We note that at

the time an objection was made and sustained, plaintiff's attorney

was attemp ting t o cross examine Mr. McCroskey relative to the

a l legations he had made against the cross-defendant regarding
4

W e do note that in the hearing on the motion for a JNOV, the t r anscript

reflects plaintiff's attorney's statement as to what the pleadings provided.

1 0

negligence. No offer of proof was made. 4 The only allegation of

negligence stated in the cross-claim was "[t]hat while in the sole

possession, custody and control of the association, one (1) of the

cross-plaintif f's two (2) horses suffered serious injuries which

were proximately caused by the negligence of the association." He

further claimed a presumption of n eglige nce pursuant to T.C.A. §

24-5- 111 pertaining to negligence of bailee. T.C.A. § 24-5-111

provides as follows:

I n all actions by a bailor against a bailee for loss

o r damage to personal property, proof by the bailor that

the property was delivered to the bailee in good condition and that it was not returned or redelivered according to the contract, or that it was returned or redelivered in a damaged condition, shall constitute prima facie

evidence that the bailee was negligent, provided the loss

o r damage was not due to the inherent nature of the

property bailed.

W e find that these allegations are conclusory and not

admissions of fact. Assuming for purposes of argument only and

without implying that it was error for the trial court to disallow

plai ntif f's attorney an opportunity to cross examine relative to

the above allegations, it was in no way harmfu l to the plaintiff

and thus was harmless error. See Rule 3 6, Tennes see Rules of

Appellate Procedure.
1 1

The appellant next complains of the reprimand which the court

addressed to him in closing argument. According to the appellant's

brief, the court sustained an objection, during final argument,

when plaintiff's counsel stated that the plaintiff did not have his

own property insurance. Specifically, he complains, that when the

trial court sustained t he objection, the trial judge stated: "I

sustain the objection and Mr. Ogle, you are treading on dangerous

ground." First we note that there is not a transcript of the

closing arguments in the record and the appellant in his brief does

not direct us to where the information can be found in the record.

Secondly, we find nothing inappropriate about the admonition. It

i s well-settled that reference to the existence or non-existence of

insurance in a negligence action is improper and may be grounds for

a mistrial. In addition, there is no evidence in the record to

show that the plaintiff did not have his own property insurance.

I n the absence of any evidence, any mentio n of insurance in any

event would be impermissible in final argument. Plaintiff contends

that the defendants opened the door to a discussion of evidence

because Mr. McCroskey mentioned that he would contact his insurance

company. We find this arg ument to be without merit. As to the

reprimand, we find nothing improper about it. It is well-settled

that the improper injection of the subject of insurance into a jury

trial is grounds for a mistrial. The trial court was simply

cautioning plaintiff's att orney to pursue the matter no further.

I n the case of Pendleton v. Evetts , 611 S.W.2d 607 (Tenn. App .
5

Some of the principles of law applied in Scarbrough , supra, to reach the

final result in that case were modified by the Supreme Court in Tenn. Dept. Of Human

Services v. Barbee , 714 S.W.2d 263 (Tenn. 1986). The principle ci ted in th i s

opinion from Scarbrough was not affected.

1 2

1981) the court specifically stated that the Trial Judge acted

properly [in reprimanding an attorney] for improper conduct during

final argument. In Pendleton , the c ourt was of the opinion that

the trial judg e's st atement would not prejudice the jury against

the plaintiffs. We are of the opinion that the statements of the

trial judge in this case in no way prejudiced the plaintiff. We

find no merit in this issue.

The last issues presented by the appellant concern special

requests for jury instructions which were denied by the court.

Refusal to charge a special request is not reversible error unless

the request is accurate and complete. Scarbrough v. City of

Lewisburg ,

5

 504 S.W.2d 377 (Tenn. App. 1 973), citing Morton v.

Martin Aviation Corp. , 205 Tenn. 41, 325 S.W.2d 524 (1959); Jenkins

v . Perry , 52 Tenn. App. 576, 376 S.W.2d 726 (1963) and authorities

cited therein. The special request submitted by the plaintiff in

this case, in essen ce, asked the trial court to charge that a

violation of T.C.A. § 44-8-103 constitutes negligence per se .

Having hereinbefore determined that a violation of T.C.A. § 44-8-

103 is not negligence per se , we find no error in the refusal of

the trial court to give the requested charge.
1 3

The judgment of the trial court is affirmed in all respects.

Costs are assessed to the appellant and this case is reman ded t o

the trial court.

 ________________________________

 Don T. McMurray, Judge

CONCUR:

_______________________________

Herschel P. Franks, Judge

_______________________________

William H. Inman, Judge
 IN THE COURT OF APPEALS

AT KNOXVILLE

MANUEL BRANCH, JR., ) KNOX CIRCUIT

 ) C. A. NO. 03A01-9709-CV-00385

 Plaintiff-Appellant )

 )

 )

 )

 )

 )

vs. ) HON. DALE WORKMAN

 ) JUDGE

 )

 )

 )

 )

 )

RODNEY McCROSKEY and GOVERNOR ) AFFIRMED AND REMANDED

JOHN SEVIER MEMORIAL )

ASSOCIATION, )

 )

 Defendants-Appellees )

JUDGMENT

This appeal came on to be heard upon the record from the

Circuit Court of Knox County, briefs and argument of counsel. Upon

consideration thereof, this Court is of the opinion that there was

no reversible error in the trial court.

The judgment of the trial court is affirmed in all respects.

Costs are assessed to the app ellan t and this case is remanded to

the trial court.

 PER CURIAM