Bly v. Swafford, 13756.
| Decision Date | 14 February 1947 |
| Docket Number | No. 13756.,13756. |
| Citation | 199 S.W.2d 1015 |
| Parties | BLY et ux. v. SWAFFORD et ux. |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; Ralph Gillen, Judge.
Action by J. B. Swafford and Novice Swafford, his wife, against Wendell Bly and wife to recover damages suffered by plaintiff wife when bitten by defendants' dog. Judgment for plaintiffs and defendants appeal.
Affirmed.
Royall R. Watkins and Fowler Roberts, both of Dallas, for appellants.
White & Yarborough, of Dallas, for appellees.
Appellees, husband and wife, as plaintiffs below, brought suit for the damages suffered by Mrs. Swafford when bitten by the dog of appellants on May 18, 1945; the cause being predicated upon negligence of the Blys in keeping a vicious dog and permitting it to inflict aforesaid injury. Trial to the court resulted in a plaintiffs' judgment for $750, which is the basis of this appeal.
As to scene of the occurrence, Mrs. Swafford, preparatory to visiting a nearby friend, had just alighted from an automobile that was parked in an alley or driveway at the rear of defendants' premises, when attacked and bitten on left leg above ankle. The animal had been confined to said back yard by means of a chain of disputed radius; there being testimony that the chain extended into the particular alleyway, defendants testifying that the dog was tied short, with Mrs. Swafford evidently trespassing on defendants' property when hurt.
Points of appeal are threefold, viz: Error in rendering a plaintiffs' judgment (1) in absence of proof that the dog was vicious and that defendants had knowledge of such viciousness; (2) in finding defendants negligent on the occasion, and in the court's failure to find that plaintiff Novice Swafford was not contributorily negligent; (3) the judgment of $750 was arbitrary and excessive in absence of proof that damages to that extent were sustained.
The trial court found (in written findings and conclusions requested by defendants) that the Blys had prior knowledge that their dog was vicious, but the securing chain was of such length as to allow it to go off the premises where it bit Mrs. Swafford; that defendants were negligent in the matter, with proximate result of said injury; that Mrs. Swafford was not contributorily negligent; fixing the damages as already shown.
Under the cause of action stated, negligence of the dog owner is not necessarily involved, the controlling issue being limited to whether the party complained against has knowingly harbored a vicious dog. See Moore v. McKay, Tex.Civ.App., 55 S.W.2d 865, Syl. 1, holding: "Owner, whether negligent or not, knowing dog is vicious, is liable for injuries to person bitten by it, unless such person voluntarily brings injuries on himself." Also, 2 Tex. Jur., Animals, sec. 174, p. 945; Dakan v. Humphreys, Tex.Civ.App., 190 S.W.2d 371; Turner v. Shropshire, 285 Ky. 256, 147 S. W.2d 388.
The question before us, therefore, narrows to a determination of whether defendants had knowledge, actual or constructive, of the dog's allegedly evil propensities, and whether injuries admittedly inflicted were reasonably commensurate with the court's award. The dog, a "Kerrie Blue," medium size, had been kept chained for four or five months, defendant Bly further testifying:
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