Groner v. Hedrick

• Decision Date: 28 March 1961
• Parties: Bertha GRONER, Appellant, v. Frank W. HEDRICK and Dorothy Ann Hedrick.
• Court: Pennsylvania Supreme Court

Page 302

169 A.2d 302

403 Pa. 148

Bertha GRONER, Appellant, v. Frank W. HEDRICK and Dorothy Ann Hedrick.

Supreme Court of Pennsylvania.

March 28, 1961.

Rehearing Denied April 20, 1961.

Reilly & Fogwell, G. Clinton Fogwell, Jr., West Chester, Jacques H. Fox, Johnson, Fox, McGoldrick & Prescott, Upper Darby, for appellant.

MacElree, Platt & Marrone, Richard Reifsnyder, West Chester, MacElree, West Chester, of counsel, for appellees.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK and EAGEN, JJ.

BOK, Justice.

First Friend, as Kipling called Wild Dog, was in this case a large Great Dane named 'Sleepy'. It jumped upon the plaintiff, who was seventy-four years old, five feet two in height, and 105 pounds in weight, and knocked her down so that she broke her arm and leg. The jury gave her $17,000 but the court below entered judgment for defendants n. o. v., on the theory that plaintiff had assumed the risk of Sleepy's temperament. A motion for a new trial was also filed but not disposed of.

What happened was that defendants hired plaintiff to come and be housekeeper and companion for Mrs. Stanley, Mrs. Hedrick's mother, while Mrs. Hedrick went to Europe. Mr. Hedrick stayed behind. The term of employment was five weeks at $100 or $125, and the accident happened after she had been on the job four weeks. She carried a little whip 'because he acted as if he was inclined to jump. I was afraid he would jump and knock me over.' She also took hold of things when the dog was near, to steady herself, and once, when she told Mr. Hedrick that she was afraid Sleepy would jump on her, he replied: 'Be careful; he might.' He jumped or brushed against her on several occasions. She said: 'I don't think he was vicious. I'm not sure', and that nothing but his jumping indicated that he was trying to hurt her. He did not growl. Another witness, who said that the dog had jumped on her twice, called him 'friendly'.

On the day of the accident, plaintiff and her patient were preparing to sit down to lunch when Mrs. Stanley asked to let Sleepy in, in order to keep him off the highway. She called him from the porch, and 'when he got beside me I started to go inside the house with him, through the living room door, and that is when he just turned suddenly and just jumped on me * * * he just went past me, then he suddenly turned and jumped.' By jumping she meant that the dog 'raised up with his front paws against here * * * left shoulder, left chest.' He often put his paws up when plaintiff sat on the sofa, and she kept a rolled magazine to keep him away.

We have no doubt that enough appears to establish defendant's negligence, and indeed this point has not been argued. A large, strong, and over-friendly dog may be as dangerous as a vicious one, and our recital of the dog's behavior at home is enough to bring knowledge to his owners, when considered together with its size and their apparent knowledge that it might jump up on people. Andrews v. Smith, 1936, 324 Pa. 455, 188 A. 146. In Fink v. Miller, 1938, 330 Pa. 193, 198 A. 666, the opinion refers to the dog's viciousness or playfulness as undisclosed by the evidence. We can find no Pennsylvania case of harm by mansuetae natura, or tame and domesticated animals, resulting from their excessive affection. Since intention forms no part of an animal's assault and battery, the mood in which it inflicts harm is immaterial, so far as the owner's duty goes. An Alabama case argues what seems to us the correct rule. Owen v. Hampson, 1952, 258 Ala. 228, 62 So.2d 245, 248, in which the Court said:

'Based on a review of our cases, as well as those from other jurisdictions, it is our opinion that the law makes no distinction between an animal dangerous from viciousness and one merely mischievous or dangerous from playfulness, but puts on the owner of both the duty of restraint when he knows of the animal's propensities. Crowley v. Groonell, 73 Vt. 45, 50 A. 546, 55 L.R.A. 876; State v. McDermott, 49 N.J.L. 163, 6 A. 653; Knowles v. Mulder, 74 Mich. 202, 41 N.W. 896; Hicks v. Sullivan, 122 Cal.App. 635, 10 P.2d 516; Mercer v. Marston, 3 La.App. 97; Hartman v. Aschoffenburg, La.App., 12 So.2d 282.

'In 3 C.J.S. § 148 c, p. 1250, under the title Animals the rule is stated thus:

"A vicious propensity is a propensity or tendency of an animal to do any act that might endanger the safety of the persons and property of others in a given situation. Although an animal is actuated solely by mischievousness or playfulness, rather than maliciousness or ferociousness, yet, if it has a tendency to do a dangerous or harmful act, it has a vicious propensity within the meaning of the rule holding the owner or keeper liable for injuries resulting from vicious propensities of which he has knowledge."

See Restatement, Torts, § 518(1), and Stevenson v. United States Express Co., 1908, 221 Pa. 59, 70 A. 275, where the temperament of a horse was held to be a matter for the jury.

We regard the rule as different so far as the victim's reaction to the animal is concerned. People trust a dog sooner than a tiger, and they would trust a friendly dog before a vicious one. In life the firmest friend, Byron said of the dog: the first to welcome, foremost to defend. It is likely that plaintiff would have acted very differently if Sleepy had been a growler and a biter. A bite is a bite, but a dog's display of affection may be greater or less. And plaintiff had successfully evaded the animal's amiable lunges for four weeks.

Hence, when we give her the benefit of all favorable facts and inferences, as we are told to do while considering judgment n. o. v. by such cases as Rutovitsky v. Magliocco, 1959, 394 Pa. 387, 147 A.2d 153, we think that the entry of summary judgment was error. In Esher v. Mineral R. R. & Mining Co. (No. 1), 1905, 28 Pa.Super. 387, the Court said:

'Where the facts are disputed, where there is any reasonable doubt as to the...