Gillespie v. Blaise

• Decision Date: 02 November 1925
• Docket Number: 9751
• Citation: 3 La.App. 59
• Court: Court of Appeal of Louisiana — District of US
• Parties: MARY ALICE GILLESPIE v. MR. AND MRS. GEORGE P. BLAISE, Appellants

3 La.App. 59

MARY ALICE GILLESPIE v. MR. AND MRS. GEORGE P. BLAISE, Appellants

No. 9751

Court of Appeals of Louisiana, Orleans

November 2, 1925

Appeal from Civil District Court, Division "E". Hon. M. H Byrnes, Judge.

This is a damage suit against the owner of a dog who bit the plaintiff.

There was judgment for plaintiff and defendant appealed.

Judgment reversed.

Prentice E. Edrington, of New Orleans, attorney for plaintiff appellee.

Louis L. Rosen, Chas. Rosen, of New Orleans, attorneys for defendants, appellants.

OPINION

CLAIBORNE, J.

This is a damage suit against the owners of a dog who bit the plaintiff.

The plaintiff alleges that she called upon a person living on Pine street for the purpose of soliciting aid for her church; that while standing upon the porch of said house waiting for the bell to be answered a large Spitz dog, the property of defendants, escaped from their yard and rushed upon the porch upon which plaintiff was standing, attacked her and bit her upon the calf of the leg, inflicting a painful wound and causing her much fright and confining her to her bed for several days; that Spitz dogs are notoriously vicious; that the defendants' dog had snapped, attacked, and bitten several other persons prior to that date and that the defendants knew of that fact.

Plaintiff claims $ 1000 damages.

The defendants denied all the allegations of plaintiff's petition. Defendants averred that "the said dog is not vicious, but, on the contrary, is a domestic pet and is gentle, docile, kind and friendly, and has never bitten or snapped at anyone to the knowledge of defendants". They also pleaded that the plaintiff provoked the dog.

There was judgment for plaintiff for $ 200.00 based on a written opinion.

The defendants have appealed.

The case turns upon the interpretation of Article 2321 (2301) of the Civil Code, which reads as follows:

"The owner of an animal is answerable for the damage he has caused; but if the animal had been lost, or had strayed more than a day he may discharge himself from this responsibility by abandoning him to the person who has sustained the injury; except where the master has turned loose a dangerous or noxious animal, for then he must pay for all the harm done without being allowed to make the abandonment."

This Article is taken from Article 1385 of the Code Napoleon, which reads as follows:

"The owner of an animal, or the one using it, while he is using it, is responsible for the damage caused by the animal, whether the animal was under his care or whether it had strayed or escaped."

The leading case upon the subject is Martinez vs. Bernhard, 106 La. 368, 30 So. 901.

The syllabus, written in those days by the organ of the court, reads as follows:

"The owner of a gentle animal which has always been of a kind temper, and has never attempted to bite anyone, and never given occasion to suspect that it would bite, is not liable in damages by the mere fact that the animal has bitten someone."

This decision was followed by this court in Ladrix vs. De Maggio, 7 Orleans App. 167, where the jurisprudence of this state on this question was reviewed.

The Martinez case was cited in Bentz vs. Page, 115 La. 560, 39 So. 599.

Where a stallkeeper was kicked by a mule the defendant was held blameless.

The court said:

"In either event it is not shown that the defendant or the foreman had reason to believe that the mule which injured plaintiff was a vicious mule, or that there was any danger to the person who fed it."

Rabbach vs. Pelican Ice Co., 141 La. 952, 76 So. 160.

The rule announced in the Martinez case is the same at common law.

1 Ruling Case Law p. 1089, S. 33:

"The owner of an animal not naturally vicious is not answerable for an injury done by it when in a place where it has a right to be, unless it was in fact and to his knowledge vicious."

3 C. J. 89, S. 318:

"But the owner of a domestic animal is not liable, in the absence of a statutory provision, unless it is affirmatively shown either (1) that the animal was vicious and that the owner or keeper had knowledge of the fact also." S. 329.

"At common law the owner of a dog is not liable for injuries caused by it unless it is vicious and notice of that fact is brought home to him." P. id. p. 97, S. 330.

"If a man keeps a dog or other brute animal used to do mischief, as by worrying sheep, or the like, the owner must answer for the consequences if he knows of such evil habit." Note 13: "But the owner is not answerable for the first mischief done by a dog, a bull, or other tame animal." 2 Blackstone, p. 124, S. 153.

"The owner of a domestic animal is not, in general, liable for an injury committed by such animal unless it be shown that he had notice of its vicious propensity." 2 Kent. Marginal p. 348 note. Cooley on Torts, p. 342. Addison on Torts, p. 22, 185--1 Labat, Master and Servant, S. 206--2 Sedgwick on Damages, p. 581, Marginal, p. 570. Shearman and Redfield, p. 218, S. 188. 1 Thompson, p. 52, Wharton, S. 917.

In Spring vs. Edgar, 99 U.S. 645, 25 L.Ed. 487, the court said:

"Damage may be done by a domestic animal kept for use or convenience, but the rule is that the owner is not liable to an action on the ground of negligence without proof that he knew that the animal was accustomed to do mischief. * * * Domestic animals, such as oxen or horses, may injure the person or property of another, but courts of justice invariably hold that if they are rightfully in the place where the injury is inflicted, the owner of the animals is not liable for such an injury, unless he knew that the animal was accustomed to be vicious, and in suits for such injuries such knowledge must be alleged and proved, as the cause of action arises from the keeping of the animal after the knowledge of its vicious propensity." Authorities: Spring vs. Edgar, 99 U.S. 645, 25 L.Ed. 487 (654).

In every case in our reports where the owner of an animal was held liable there was evidence that the animal was known by the owner to be dangerous or had injured someone at some prior time. DeLisle vs. Bourriague, 105 La. 77, 29 So. 731; Montgomery vs. Koester, 35 La.Ann. 1091; McGuire vs. Ringrose, 41 La.Ann. 1029, 6 So. 895; Bentz vs. Page, 115 La. 560, 39 So. 599; Serio vs. American Brewing Co., 141 La. 290, 74 So. 998.

In Bentz vs. Page 115 La. 560, 39 So. 599, and Serio vs. American Brewing Co., 141 La. 290, 74 So. 998, the court said:

"In order to bring this case within the ruling of Martinez vs. Bernhard, 106 La. 368, 30 So. 901, it was necessary for defendant to show that the animal had always been of a kind temperament, had never attempted to bite anyone, and had never given occasion to suspect that he would bite."

Therefore, if the defendant made such proof plaintiff's suit against her must be dismissed.

Mrs. Blaise testified that she had owned that dog for four or five years and had kept him all that time in her house; it was given to her by Miss Mildred O'Conner; she kept the dog in the back yard if she went out, or in the house when she was home, because it was her pet; but never kept it under lock and key; a gate separates the back yard from the front yard; her dog never bit anybody nor showed any disposition to bite anybody to her knowledge; she does not keep the dog as a watch dog but as a pet.

George P. Blaise testified:

"This dog never displayed vicious propensities to his knowledge; never saw it snap at anybody or bite anybody; the children in the neighborhood play with him; the dog never bit any of the children that he knows of; they keep the dog around when visitors come to the house; the dog never snapped at them, on the contrary he wants to make friends; he is a friendly dog.

"Mrs. Fruch is his sister-in-law; she lives in the adjoining half of the double house he lives in; there was no partition in the back and the dog would go there; when they went out of town Mrs. Fruch kept the dog for them; she knows as much about the dog as Mrs. Blaise does."

Mrs. A. B. Fruch testified that she kept the defendants' dog many times when they went out; she never did tell Mr. Edrington that she was almost tickled to death when her sister-in-law (Mrs. Blaise) came home in order to relieve her of the work of keeping the dog; she never spoke to him; the dog was a regular pet; she kept him in the house; he was harmless and never did anything; she has known the dog since it was a baby, since Mrs. Blaise had it; never saw the dog bite anybody or snap at anybody nor display any vicious tendencies.

Miss Mildred O'Conner testified that the dog had been given to her; she had it for about four months, and then she gave it to Mrs. Blaise; the whole time she had it it was very nice and never snapped or anything like that; very good disposition; you could play with it and children could and never annoyed anybody coming in the house, even strangers; it was a month old when she got it; she did not give the dog because it was bad, she gave it...