Brown v. Barber
| Decision Date | 26 February 1943 |
| Parties | BROWN v. BARBER et al. |
| Court | Tennessee Court of Appeals |
Petition for Certiorari Denied by Supreme Court July 3, 1943.
Appeal in Error from Circuit Court, Shelby County; Harry Adams Judge.
Action by William Bert Brown against T. V. Barber and others for personal injuries sustained when plaintiff was bitten by a dog owned by defendant. From a judgment of dismissal plaintiff appeals in error.
Affirmed.
Mary Guidi, of Memphis, for plaintiff in error.
W. H Fisher, of Memphis, for defendants in error.
The original plaintiff Brown instituted this action to recover damages for personal injuries alleged to have been sustained when he was bitten by a dog owned by the defendant. Upon a trial before the judge without a jury, the suit was dismissed and the plaintiff appealed in error. The ultimate question for decision is whether the judge applied the correct rule of law to the facts.
The defendant operated an automobile servicing establishment in a building fronting on Madison Avenue and Court Street. The plaintiff had left his car with the defendant to be serviced. He entered the defendant's place of business, went to the wash rack near the rear, on which the car was then standing, and while he was examining the car he was bitten by the defendant's watch dog which was chained nearby. Notwithstanding a contrary contention by the defendant, the judge held that the plaintiff was an invitee on the premises at the point where the injury occurred, but he was of the opinion that the plaintiff had been seasonably warned of the presence of the animal and not to go near him lest he be bitten, and hence, other questions aside, the doctrine of volenti non fit injuria barred a recovery. As against this contention, the plaintiff contends that the dog was vicious and known to be so by the defendant, and that to keep him on his premises where the public was invited was to maintain an absolute nuisance, as contra-distinguished to a nuisance grounded on negligence, and that in an action for injuries resulting from such a nuisance neither the doctrine followed by the judge nor that of contributory negligence is available as a defense.
The defendant's business house was about 300 feet long and about 300 feet wide on Madison Avenue, the width narrowing in the rear to 150 feet on Front St. The work shop and servicing equipment, including a large space for storage of motor vehicles, were in the rear of the building. In the front, a waiting room was provided for patrons. The custom was, when a patron called for a car, he would wait in this room until an employee brought it to the front of the building. To the extreme rear of the building was the paint shop with a door opening onto Front St. This door was apparently not for the use of customers. Toward the rear of the building and to one side, there was a grease rack and a wash rack used for greasing and washing cars. As a part of his business the defendant provided over-night storage for large trucks loaded with valuable goods. He employed a night watchman to guard the premises after business hours and also kept a German police dog. During the daytime the animal was kept chained outside the building but was brought inside at night and secured with a six foot chain affixed to a hook driven in the floor adjacent to the wash rack. It was customary to turn the dog loose inside the building after it had been closed for the day and the employees had all left.
About 6:30 o'clock p.m. on the day of the accident the plaintiff called to get his automobile, which same two days before he had left to be repaired. Instead of coming through the front entrance, he entered from the rear through the door opening into the paint shop from Front Street. It was then about 6:30 p.m., thirty minutes past the defendant's regular closing time. The watchman had come on duty about 5:30 p.m. It was raining and he had brought the dog inside and fastened his chain to the hook in the floor adjacent to the wash rack. There were lights burning in the building at that time, some of the lights having been turned off preparatory to closing up. The employees had quit and were preparing to leave the place. Three of them were in the vicinity of the wash rack when the plaintiff came in. Posted on the wall, within 4 or 5 feet from the hook to which the dog's chain was fastened, was a sign on which was the warning, "Keep out, bad dog", in letters about 6 inches high. The plaintiff's car was on the wash rack. He seemed to be familiar with the premises, and proceeded directly towards his car, without making any inquiry of the employees who were present, and without asking any one's permission or consent. As he did so, the dog was barking loudly and one of the employees warned him in this language, "don't go around the dog, because he will bite you". To this warning the plaintiff responded that the dog would not bite him. He proceeded toward the car, the dog being at that time in the front of it, which was apparently nearest the west wall. The plaintiff reached the back-end of the car first and was "feeling around the car". At that time he was out of reach of the dog, who was still barking. Notwithstanding the plaintiff proceeded to the front of the vehicle and while he was examining the car the dog bit him on the leg, tearing his trousers, frightening him greatly. He also sustained "a little cut about a half of an inch in length", in his efforts to get away from the dog. The injury on the leg was described by his witness as: "he just bit through his pants and knocked the skin off, it didn't even bleed."
The defendant had owned the dog for about a year at the time the accident occurred. There was some evidence that the animal had attacked one or two other persons. Some two years after the accident the defendant had the dog killed.
We think the judge erred in ruling that the plaintiff was an invitee and hence the defendant owed him the duty to exercise...
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