Bradley v. Hendricks

• Decision Date: 10 January 1972
• Docket Number: No. 5--5680,5--5680
• Citation: 474 S.W.2d 677,251 Ark. 733
• Parties: Dorothy BRADLEY, Appellant, v. Billy HENDRICKS, Individually and as Father and Next Friend of Randy Lynn Hendricks, a Minor, Appellees.
• Court: Arkansas Supreme Court

Page 677

474 S.W.2d 677

251 Ark. 733

Dorothy BRADLEY, Appellant, v. Billy HENDRICKS, Individually and as Father and Next Friend of Randy Lynn Hendricks, a Minor, Appellees.

No. 5--5680.

Supreme Court of Arkansas.

Jan. 10, 1972.

Williams & Gardner, Russellville, for appellant.

Felver A. Rowell, Jr., Morrilton, for appellee.

JONES, Justice.

Billy Hendricks, individually and as father and next friend of his five year old son, Randy, filed suit in the Conway County Circuit Court against Mrs. Dorothy Bradley for medical expenses incurred by Mr. Hendricks and for damages sustained by Randy when he was bitten by a dog belonging to Mrs. Bradley. A jury trial resulted in a verdict against Mrs. Bradley for $5,000 damages and for $52.50 medical expenses. Judgment was entered on the verdict and on appeal to this court Mrs. Bradley relies on the following points for reversal:

'There is no substantial evidence that the dog had vicious or dangerous propensities nor that defendant had knowledge that her dog was dangerous.

The verdict and judgment is excessive.'

It is well settled in Arkansas that when a person is injured by a domestic animal legally permitted to run at large by its owner, in order for the injured person to recover damages from the owner without the necessity of proving the owner's negligence, it must be shown that the animal has vicious tendencies or dangerous propensities and that the owner knew, or should have known, of such tendencies or propensities. Field v. Viraldo, 141 Ark. 32, 216 S.W. 8; McIntyre v. Prater, 189 Ark. 596, 74 S.W.2d 639; Holt v. Leslie, 116 Ark. 433, 173 S.W. 191; Finley v. Smith, 240 Ark. 323, 399 S.W.2d 271; see also Cagle v. Monroe, 215 Ark. 518, 221 S.W.2d 1.

The record reveals that about ten days prior to August 10, 1969, Mrs. Dorothy Bradley, who owned a small Dachshund dog, moved into a house on Moose Street in Morrilton, Arkansas, a few doors from the home occupied by Mr. and Mrs. Hendricks and their children, Randy than three years of age and Delilah then seven years of age. Mrs. Hendricks planned to go out of town on August 10, so by prior arrangement she took her two children next door to the home of Mrs. Dorothy Martin, who was to keep the Hendricks children, along with two other children, until Mrs. Hendricks returned. While Mrs. Hendricks was still preparing to leave on her trip, and while Mrs. Martin was busy about her carport and the children were playing in Mrs. Martin's yard, Randy sustained some injuries to his face and one ear when he was apparently bitten by Mrs. Bradley's dog.

Mrs. Martin testified that she was busy in her carport and when she heard Delilah scream, she ran toward where the children were playing. She says that Delilah brought Randy to her and that he had blood all over him. She says that she then called Mrs. Hendricks who took the child to the hospital. Mrs. Martin testified that she saw Mrs. Bradley's dog in the yard when Randy was injured, but that she did not see the dog bite Randy. Mrs. Martin testified that one morning when she went out to her garbarge can, Mrs. Bradley's dog was there and it growled at her.

Mr. Hendricks, the appellee, testified that Mrs. Bradley's dog had growled at him and on one occasion he saw Mrs. Bradley's dog growl at his daughter, Delilah, and nip at her heels while Delilah was passing in front of the Bradley house on her way to play with a neighbor girl. On this point Mr. Hendricks testified as follows:

'Q. You saw the dog growl at your daughter?

A. Yes, sir.

Q. And what did you say you did?

A. Well, I run down there and run the dog off to keep her from biting her.

Q. Where was it?

A. It was in front of the Bradley house.

Q. . . . describe to me what the dog did?

A. Well, it run out and growled at her and acted like it was going to bite her.

Q. How close did it get to her?

A. Well, it nipped at her heels.

Q. Nipped at her heels, and where were you?

A. I had come out of the house to go back to work.

Q. And it was close enough that it could have reached her heels?

A. Yes, sir.

Q. All right. And you say it growled?

A. Yes, sir.

Q. Did it bark?

A. Yes, sir.

Q. . . . And did she run?

A. She started to. I told her not to run, because it would take off after her for sure then.

Q. And that's all you did, and she quit running?

A. I picked up a rock and throwed it.

Q. After that, what did you do now?

A. I asked the Bradley lady to put the dog up, because it could bite another child, or bite her again.

Q. You say 'bite her again?'

A. It could bite her, or try it again.

Q. Had your daughter played with the dog any at that time?

A. No, sir. They wasn't allowed to play with dogs.'

Mr. Hendricks testified that he went to Mrs. Bradley's house after he got off from work and talked with Mrs. Bradley.

'Q. And what did you tell her?

A. I asked her to put the dog up, because it tried to bite my little girl today, and I asked her if she would put it up, because I didn't want my little girl hurt.'

Mr. Hendricks testified that he knew of no other instance where the dog growled at or attempted to bite any other person.

Mrs. Ellen Fay DeLong called as a witness by Mr. Hendricks, testified that on one occasion, as she started out to get into her car, a dog, which she believed to be Mrs. Bradley's dog, growled at her.

Mrs. Bradley testified that she had owned the dog since 1965; that the dog was of a gentle and friendly disposition and had played with children all its life. She testified that she never knew of the dog growling at or attempting to bite anyone. She specifically denied that Mr. Hendricks came to her house and she emphatically denied that he told her that her dog had attempted to bite his daughter. A number of witnesses who had lived as neighbors to Mrs. Bradley testified that the dog was of a docile and friendly disposition; that it played with children and had never shown any dangerous propensities.

This court is bound, of course, by the substantial evidence rule in law cases (B-W Acceptance Corp. v. Polk, 242 Ark. 422, 414 S.W.2d 849) and the evidence in this case presents a close and difficult question under the rule. Mr. Hendricks' little daughter Delilah, who was nine years old at the time of the trial, did not testify in this case, and the record reveals no other eye witness to the occurrence. Mrs. Martin only heard the commotion, saw the dog in the yard, and observed Randy's injuries when Delilah brought him to Mrs. Martin. Mr. Hendricks testified that his children were not permitted to play with dogs, but the injuries sustained by Randy were on his face and ear, so it would appear that he was either on the ground with the dog at the time of the injuries or the dog was in his arms if he were standing.

There is no evidence at all in the record as to what provocation, if any, occurred in this case, but the question of proximate causation is not argued. It is not seriously contended that Mrs. Bradley's dog did not bite the child, so the total lack of any evidence as to whether the child attacked the dog or the dog attacked the child, leaves this case on appellant's first point to be determined strictly on the substantiality of the evidence as to the dangerous propensities of the animal and Mrs. Bradley's knowledge thereof.

Our own cases are of little assistance on this point. In Field v. Viraldo, supra, the vicious acts of a bull were involved but in that case two previous acts showing vicious propensities were testified to and the owner of the bull admitted his knowledge of its vicious nature. In Holt v. Leslie, supra, a Bulldog being transported by rail was involved. The suit was against the railroad company and in addition to testimony that the dog would lunge at everyone who came near it, while in the possession and under the control of the station agent, a letter from the consignor to the consignee was introduced wherein it was stated that the dog had previously bitten someone. Warnings were printed on the dog's crate and the consignee testified that he thought he had told the railroad agent that the dog was dangerous.

Turning now to cases from other jurisdictions, in Young v. Cunningham, 94 R.I. 378, 181 A.2d 109 (1962), testimony that a dog had snapped at people on two prior occasions and that injured girl's mother had told the owner that she would not permit her daughter to visit owner's premises unless the dog was tied up was held sufficient on conflicting evidence to justify the trial court in refusing to grant a motion for a new trial following a verdict for the plaintiff.

In the Colorado case of Barger v. Jimerson, 130 Colo. 459, 276 P.2d 744, evidence showing that a dog which was kept in a fenced yard would lunge at everyone who came by, although it never bit anyone, was held sufficient to sustain a judgment for the plaintiff.

In the Texas case of Bly v. Swafford, Tex.Civ.App., 199 S.W.2d 1015, the only evidence of the owner's knowledge of the dog's viciousness was the testimony of plaintiff's husband that the owner had stated to him that he (the owner) had told the police on a previous occasion that the dog was vicious. Although the owner denied the statement, the court held that the evidence was sufficient to sustain a judgment for the plaintiff.

On the other hand in the North Carolina case of Sink v. Moore, 267 N.C. 344, 148 S.E.2d 265, the North Carolina court held that evidence showing a dog's tendency to chase automobiles and fight was not sufficient to support a finding that the dog had vicious propensities and thus the trial court was justified in entering a judgment of nonsuit for the owner.

In the Missouri case of Mitchell v. Newson, Mo.App., 360 S.W.2d 247, the only evidence offered as to the viciousness of the dog was that it barked at trash men; that there was a chain on its doghouse, and the testimony of the plaintiff's mother that she saw the dog jump at another boy and snap at him. The appellate court held that the trial court was justified in directing a...