Benke v. Stepp

• Decision Date: 09 September 1947
• Docket Number: 32742.
• Citation: 184 P.2d 615,199 Okla. 119,1947 OK 223
• Parties: BENKE v. STEPP et al.
• Court: Oklahoma Supreme Court

184 P.2d 615

199 Okla. 119, 1947 OK 223

BENKE v. STEPP et al.

No. 32742.

Supreme Court of Oklahoma

September 9, 1947

Appeal from District Court, Tulsa County; Harry L. S. Halley, Judge.

Action by Walter J. Benke against Charles W. Stepp and others for injuries sustained when plaintiff was bitten by a vicious dog alleged to have been owned and kept by defendants. From a judgment of dismissal, plaintiff appeals.

Reversed.

Injuries resulting from negligence or trespass, in their most comprehensive signification, include an action in form of tort arising from the fault of defendants.

Syllabus by the Court.

1. The keeping of a vicious dog, with knowledge of the dog's propensities, renders the owner and keeper liable for damages for dog's injurious acts where, in the absence of the owner, his wife is in charge of the premises, acting as the keeper of the dog, and, after a reasonable notice of the dog's vicious propensities, she fails to restrain the dog and plaintiff, without fault on his part, is injured by the dog's attack upon him.

2. Where, in such a case, the evidence of plaintiff is such that reasonable men may fairly differ as to defendant's negligence, their demurrers to plaintiff's evidence should be overruled. 12 O.S.1941 § 577.

Spillers & Spillers, of Tulsa, for plaintiff in error.

Frank Hickman, of Tulsa, for defendants in error.

RILEY Justice.

Plaintiff in error, Walter J. Benke, a postman engaged in delivering U S. mail in the residential district of the City of Tulsa sued defendants in error, husband and wife, to recover damages for personal injuries sustained by plaintiff as a result of being bitten by a vicious dog alleged to have been owned and kept by defendants at their residence.

Plaintiff's petition detailed knowledge on the part of defendants of the vicious character of the dog at the time of plaintiff's injury.

Defendants answered by general denial. A jury was waived and the cause proceeded to trial before the court. At the close of plaintiff's evidence, defendants' separate demurrers were, by the court, sustained. Judgment was entered dismissing plaintiff's cause of action; he has appealed.

Plaintiff established his injury and damages resulting from an attack by the dog kept by defendants at their place of residence, on June 8, 1945.

Plaintiff testified that on the date mentioned he went to defendants' residence to deliver mail; the dog kept by defendants was lying close to a porch swing at their residence; while plaintiff was placing mail in the box, the dog committed an attack upon him, as a result of which several letters contained in a package in plaintiff's hand were torn. Plaintiff showed the letters to defendants Mrs. Stepp who was present, and advised Mrs. Stepp that the dog was vicious. 'Something will have to be done about that dog. He bit my mail.' 'The dog tore up my mail.' Mrs. Stepp replied. 'That dog wouldn't hurt anything,' to which plaintiff answered 'Well * * * here is the evidence, he tried to bite me, he tore up my mail.' Mrs. Stepp made no reply. That Mr. and Mrs. Stepp were husband and wife was then admitted.

Mrs. Stepp did nothing to restrain the dog; the dog was not restrained; plaintiff walked down the steps from the porch of defendants' house, to continue with the delivery of the mail. As he arrived at the sidewalk, the dog bit him on the leg. Plaintiff showed defendant Mrs. Stepp where his leg was bleeding and inquired whether she still thought the dog wouldn't bite.

Defendant Charles W. Stepp was called as a witness on behalf of plaintiff. He testified as to his place of residence and his ownership of the dog; that his wife was in charge of the house and premises during his absence but that the dog was usually shut up in the yard and his wife did not have to look after the dog when he was away from home.

The court then sustained a demurrer to the evidence as to defendant Charles W. Stepp, and assigned as a reason that defendant Charles W. Stepp, in the opinion of the court, did not have notice of the dog's vicious propensities.

A Mrs. Harrison was recalled as a witness for plaintiff. She testified that on the day in question, immediately after plaintiff came to her home near by and she saw his injuries, she observed Mrs. Stepp talking to the dog and putting him in the pen. Plaintiff testified likewise as to Mrs. Stepp's subsequent control and supervision of the dog.

Thereupon the court sustained the demurrer to the evidence as to defendant Mrs. Stepp, and rendered judgment dismissing plaintiff's case.

The rule is well established that where the evidence is such that reasonable men may fairly differ as to whether the facts constitute negligence, a demurrer should be overruled. Carter, Adm'r. v. Pinkerton, 194 Okl. 34, 146 P.2d 842. Ordinarily, a demurrer to the evidence admits every fact which the evidence, in the slightest degree, tends to prove, and all inferences and conclusions which can be reasonably and logically drawn therefrom; a demurrer should be overruled where the evidence reasonably tends to establish negligence. In an action of legal cognizance, tried to the court, where the court considers and weighs all the evidence, its action in sustaining a demurrer and entering judgment for defendant will not be disturbed if there is evidence reasonably tending to support the judgment. Looney, Trustee, v. Bruin Oil Corp., 190 Okl. 266, 122 P.2d 1007. The effect of a demurrer in view of a consideration of conflicting evidence or testimony of questionable veracity is a motion for judgment or non suit. Barron v. Chicoraske, 189 Okl. 35, 113 P.2d 376.

The instant case involves more than negligence; the evidence of plaintiff, uncontradicted and unimpeached, relates to the keeping without restraint of an animal possessed of vicious propensities.

In Tubbs v. Shears, 55 Okl. 610, 155 P. 549, L.R.A. 1916D, 1032, this court held:

'While the owner of a dog is not liable, in the absence of statutory provision, for any injury it may inflict upon another, unless he has notice of its inclination to commit such injury, the modern and more reasonable doctrine is that he need not have actual notice thereof in order to make him liable.

'Such notice may be actual or constructive.'

In Harris v. Williams, 160 Okl. 103, 15 P.2d 580, we held:

'Where a vicious dog is kept at the home of a married couple, knowledge of its vicious character by one is notice thereof to the other.'

In Aryes v. Macoughtry, 29 Okl. 399, at page 410, 117 P. 1088, 1092, 37 L.R.A., N.S., 865, it is recited: 'It has been held in numerous cases, that where knowledge was had of dangerous and vicious propensities of a dog by others of the owner's household, he was held to have the knowledge which they possessed. For instance, in the case of Barclay v. Hartman, supra, [2 Marv. Del., 351, 43 A. 174], a wife's knowledge was sufficient to charge the husband with responsibility. Likewise, in the case of Boler v. Sorgenfrei et ux, supra, [Sup., 86 N.Y.S. 180], the knowledge of the wife was deemed sufficient. In the case of King v. Muldoon, supra, [131 A.D. 847, 116 N.Y.S. 3087], a complaint to the housekeeper of the defendant, who testified that she was in general charge of the place in the absence of the defendant, was held sufficient; and in the case of Grissom v. Hofius, supra, [39 Wash. 51, 80 P. 1002, 4 Ann.Cas. 125], evidence that the watchman of the owner knew of the previous instances of the dog attacking and biting persons was sufficient to go to the jury upon the question of whether the owner knew or should have known of the vicious disposition of the dog.'

The basis of the rule rendering the master liable without actual notice is in fact negligence. In Barclay v. Hartman, 1896, 2 Marv. Del., 351, 43 A. at page 175, it was said:

'If a man has a dangerous dog, though he may never have bitten any person; if he is of a vicious and ferocious character, and that knowledge is brought home to his wife, * * * in case of an injury inflicted by that dog, he unquestionably would be liable, though no actual notice had been given.'

It was suggested that there may be a case in which there is no actual notice, but by a reason of duty there is imposed upon the owner notice of what he reasonably ought to know.

In Boler v. Sorgenfrei et ux, 1904, Sup., 86 N.Y.S. 180, in an action for damages for personal injuries inflicted on plaintiff by a dog, the defense was that the defendant did not know of the propensities of the dog, but neither defendant nor his wife testified; the inference resulting from their failure to testify was that their testimony would have been unfavorable to them. That exact situation is presented in the case at bar.

Notice of the dog's vicious propensities was given to defendant Mrs. Stepp, by plaintiff, immediately prior to plaintiff's personal injury. Whether she had time or opportunity to communicate such notice to her husband and the necessity, as a matter of law, for notice of the particular exhibition of viciousness to be communicated to the master presents the difficult problem confronting us.

It has been held that the fact of a dog's savage and ferocious disposition is equivalent to express notice to the owner. Muller v. McKesson, 73 N.Y. 195, 29 Am.Rep. 123. It is considered a knowledge which the owner ought to have and as a consequence he is, in law, chargeable with it.

A dog is not of a species of animal naturally dangerous to mankind. If the individual animal is of a peaceful disposition, and providing due care is exercised at the time, the dog suddenly and unexpectedly inflicts injury upon another, neither the owner nor keeper is answerable. 2 Am.Jur. 728 § 48. But if such an animal is found, or by the exercise of care should have been found,...