Frazier v. Stone, 9704

• Decision Date: 23 December 1974
• Docket Number: No. 9704,9704
• Citation: 515 S.W.2d 766
• Parties: Ruby May FRAZIER, Plaintiff-Respondent, v. Russell STONE and Freta Stone, his wife, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 766

515 S.W.2d 766

Ruby May FRAZIER, Plaintiff-Respondent, v. Russell STONE and Freta Stone, his wife, Defendants-Appellants.

No. 9704.

Missouri Court of Appeals, Springfield District.

Dec. 23, 1974.

Albert C. Lowes, David G. Beeson, Buerkle, Buerkle & Lowes, Jackson, for defendants-appellants.

Lewis M. Blanton, Robison & Blanton, Sikeston, for plaintiff-respondent.

Before HOGAN, C.J., and TITUS, BILLINGS and FLANIGAN, JJ.

FLANIGAN, Judge.

Appellants Russell Stone and Freta Stone, husband and wife and defendants below, appeal from a judgment entered against them in the amount of $826.29, arising out of an incident which occurred on September 13, 1972, in which their dog bit Ruby May Frazier, plaintiff below and respondent here.

It is the principal contention of defendants that the plaintiff did not make a submissible case in that plaintiff failed to prove that the dog, Skipper, possessed a vicious propensity. Other contentions of defendants need not be considered because this court sustains their principal contention.

In determining the question of submissibility this court must consider the evidence in the light most favorable to the plaintiff, ". . . accepting as true all that is not entirely unreasonable or contrary to physical facts or natural laws and giving to plaintiff the benefit of all favorable inferences that reasonably may be drawn from such evidence. * * * But, of course, the case is not to be submitted unless each and every fact essential to liability is predicated upon legal and substantial evidence. Neither may any fact essential to submissibility be inferred in the absence of substantial evidentiary basis. In other words, liability cannot rest upon guesswork, conjecture or speculation beyond inferences reasonably to be drawn from the evidence. * * * The question of whether the evidence in a given case is substantial is one of law for the court. * * * ' Probst v. Seyer, Mo.Sup., 353 S.W.2d 798, 802, 91 A.L.R.2d 1252.' The quoted language is repeated in Houghton v. Atchison, Topeka & Santa Fe Railroad Co., 446 S.W.2d 406, 409 (Mo.banc 1969). ¹

The review of the evidence must be conducted in light of certain well established principles of dog law. In State v. Craig, 329 S.W.2d 804 (Mo.App.1959) this court, speaking through Judge Stone, said: '(I)n an action against the owner or harborer of a dog for injury inflicted by such animal, defendant's scienter (i.e., actual or constructive knowledge) of the vicious or dangerous propensities of the dog . . . is (except where removed by statute) an essential element of the cause of action and a necessary prerequisite to recovery . . .. As our Missouri courts have put it bluntly and succinctly in dog bite cases, 'the gist of the action is the keeping of a vicious dog after knowledge of his vicious propensities. '' State v. Craig, supra, 329 S.W.2d at 808--809.

In order for plaintiff to prove scienter it is necessary that the evidence show that Skipper in fact had vicious or dangerous propensities. Clinkenbeard v. Reinert, 284 Mo. 569, 225 S.W. 667 (banc 1920); Maxwell v. Fraze, 344 S.W.2d 262 (Mo.App.1961). 'Of course, the injury complained of must result from the exercise of the dangerous propensity. . . . It is not necessary for the dog to have bitten someone before if the dog has demonstrated a vicious propensity for biting. The controlling element is not whether it is a first bite but whether the dog has a vicious propensity for biting known to its keeper. On the other hand, the bare fact of a prior bite does not of itself establish the vicious propensity. The circumstances surrounding the occasion of the biting and its extent demonstrate whether the incident of the prior bite is sufficient evidence or some evidence of a vicious propensity of the dog to inflict injury.' Maxwell, supra, 344 S.W.2d at 264.

The terms 'vicious propensities' and 'dangerous propensities' 'generally have been defined as the tendency of a dog to injure persons, whether the dog acted out of anger, viciousness, or playfulness. Dansker v. Gelb, Mo.Sup., 352 S.W.2d 12.' Bush v. Anderson, 360 S.W.2d 251, 256(13) (Mo.App.1962). 'A 'vicious propensity' is not confined to a disposition on the part of the dog to attack every person he might meet, but includes as well a natural fierceness or disposition to mischief as might occasionally lead him to attack human beings without provocation.' Merritt v. Matchett, 135 Mo.App. 176, 115 S.W. 1066 at 1069 (1909).

The plaintiff produced three liability witnesses. They were plaintiff herself, defendant Freta Stone, and Elma Gardner.

Plaintiff testified that she was sixty-five years old and lived in a house which she rented from the Richwood Methodist Church. The defendants were neighbors of plaintiff and plaintiff paid her rent to Mrs. Stone who collected it for the church. The plaintiff did not have a telephone and plaintiff occasionally had gone to defendants' house to use their telephone. On September 13, 1972, the day of the dog bite, plaintiff went there for that purpose. Skipper was a 'pretty good size' cocker spaniel dog. On prior visits plaintiff had seen Skipper. Usually Skipper was in defendants' back yard and on a chain. In warm weather plaintiff had seen the dog a few times in a large fenced area but it was not there very long and plaintiff testified she had never seen Skipper 'loose' before.

Before the day of the accident plaintiff had seen Skipper barking and lunging from the chain 'when you get around where it could see you or a distance from you.' Skipper did this when plaintiff 'came around.' 'Most of the time whenever I would go there the dog would be doing that, barking and lunging.' Plaintiff never did anything to provoke Skipper. Prior to the accident plaintiff had never been to defendants' home at night.

On the accident date, at 6:30 or 7 p.m., plaintiff entered the premises of defendants. 'I was going to call my daughter and I naturally--I was just going to go on up to the front, which I had been used to doing, and not expecting the dog to be loose, and just as I got over in the yard, you know, why, the dog come off of the steps and just come running its best, and when it got to me, it hit me, you know, just grabbed me all at once like that right on the leg, and so I knew they was home because I seen the light in the front room, and I went to hollering for them and the dog, when I hollered that--the first time when it hit me, I hollered, why, it just jumped back in front of me like it had me bayed, just sitting there, and I went to hollering for them, trying to get them to hear me, and I hollered several times, and so then Mrs. Stone, she opened the door, and as she come out on the steps, the dog left me and went to meet her, and just as she was coming along, the dog turned and got in front of her and was coming back, just like it was coming back to get me, running back towards me, and she was talking to it, and just as the dog got up at me, I was scared, and I said, 'Mrs. Stone.' She said, 'What is the matter?' and I said, 'Your dog has bit me,' and I said, 'It's going to get me,' and getting right up at me, and she kept talking to it and she got it checked, . . .'

Immediately following the infliction of the bite, Mrs. Stone took the plaintiff into the home of the defendants for first aid. According to plaintiff, at that time defendant Russell Stone said, 'Well, I been aiming to get rid of that dog, it won't bite nobody else.'

When asked why the dog had bitten her the plaintiff responded, 'All I know it wanted to bite.'

On cross-examination the plaintiff admitted that she didn't 'know anything about the dog biting or offering to bite anybody before.'

Although plaintiff's evidence was not confined to her own testimony, the latter invites comment. The fact that the plaintiff herself was attacked does not, per se, justify indulging the presumption that the attack was the result of a vicious propensity or that the defendants should have anticipated the occurrence. Merritt v. Matchett, supra, 115 S.W. 1066, 1068. Barking, running loose, jumping, and lunging are activities in which all dogs engage and, absent further showing, do not alone justify a finding of vicious propensities. Mitchell v. Newsom, 360 S.W.2d 247 (Mo.App.1962). The same is true of jumping at or scaring people where there is no evidence of any propensity of the dog to bite or otherwise harm people. Boyer v. Callahan, 406 S.W.2d 805 at 810 (Mo.App.1966). The use of a dog chain is not in itself evidence of a dog owner's knowledge of a dog's vicious propensity. Mitchell v. Newsom, supra, 360 S.W.2d 247. To hold otherwise 'would place the dog owner in an impossible position of not knowing whether to restrain or let his dog run loose. There is no obligation to restrain until the duty is evident as shown by all of the reported cases.' Mitchell, supra, 360 S.W.2d at 251.

The statement attributed to defendant Stone does not, alone or in conjunction with the other evidence, constitute proof of a vicious propensity. Plaintiff, a lady of obvious veracity and of misfortune, did not testify that she understood the statement to refer to a prior bite nor may this court read, even by inference, such a meaning into it. Though not binding on the plaintiff, Mr. Stone later testified that he had intended to get rid of Skipper because his wife had arthritis and could not care for the dog.

Plaintiff called defendant Freta Stone as a witness. In so doing, plaintiff bound herself by that portion of Mrs. Stone's testimony which was uncontradicted or was the only evidence on a point, (Taylor v. Riddle, 384 S.W.2d 569 (Mo.1964)), and, within the foregoing limits, plaintiff was bound only by that portion of the testimony of Mrs. Stone which plaintiff offered and was not bound by the testimony of the witness elicited on cross-examination by her own counsel. Taylor, supra, 384 S.W.2d 569.

Mrs. Stone admitted that she might have told the plaintiff that she...