Hamilton v. Smith, 324

• Citation: 242 Md. 599,219 A.2d 783
• Decision Date: 27 May 1966
• Docket Number: No. 324,324
• Parties: Gilmore O. HAMILTON et ux. v. Donald K. SMITH, etc., et al.
• Court: Court of Appeals of Maryland

Page 599

242 Md. 599

219 A.2d 783

Gilmore O. HAMILTON et ux. v. Donald K. SMITH, etc., et al.

No. 324.

Court of Appeals of Maryland.

May 27, 1966.

Edward D. Storm, Frederick, for appellants.

Leroy W. Preston, Baltimore (O'Connor & Preston, Baltimore, and Edwin F. Nikirk, Frederick, on the brief), for appellees.

Before PRESCOTT, C. J., MARBURY, BARNES and McWILLIAMS, JJ., and MATTHEW S. EVANS, Special Judge.

MARBURY, Judge.

Donald K. Smith (Donald) infant, by his parents and next friends, Floyd S. and Mary M. Smith, instituted suit to recover for near fatal injuries suffered as the result of an attack made upon him by three dogs alleged to be owned or harbored by the defendants Gilmore O. Hamilton and his wife, Rosaline Hamilton. In a separate count Donald's parents sued to recover for medical expenses and loss of services occasioned by the same incident. The suit was filed in Frederick County but was removed to Baltimore County for trial, where it was heard by Judge Walter Mitchell Jenifer, sitting without a jury, in the Circuit Court. At the conclusion of a three day trial, Judge Jenifer concluded that: (1) the dogs which perpetrated this attack upon the infant plaintiff were owned or harbored by the defendants, (2) the defendants had knowledge of the vicious propensities of the animals, and (3) there had been no contributory negligence on the part of the plaintiffs. Damages were found to be $1,531.28 in favor of the father for medical expenses, no damages for loss of services, and $30,000 in favor of the infant plaintiff. From the judgment entered upon the court's verdict the defendants appealed.

On the morning of November 5, 1963, nine year old Donald was asked by his mother to go to a restaurant owned and operated by the Hamiltons (defendants-appellants) to buy a carton of cokes for her sick younger son. The designated restaurant was on the same tract of land approximately one-quarter of a mile from the Smiths' house, which they rented from the Hamiltons. Mindful that he was to catch a school bus at 8:30 a. m., Donald left for the restaurant at eight o'clock, riding his brother's bike. At some point along the private lane which connects the tenant house to the restaurant and Maryland Route 66, he encountered a dog which chased him for a short distance. Donald was able to get away from the dog and he testified at the trial that he was only able to give it a hurried glance, but he thought it was the defendants' dog Bozo. Arriving at the restaurant, Donald told the only person in the establishment, a customer named Milton Cook, that he had been chased by a dog. Cook, after offering to call 'the dogs' so that the boy might safely return to his home, advised the lad to be careful because 'those dogs' had bitten someone the previous week. After waiting on Donald, Cook then went outside the restaurant and whistled for the dogs, and 'two dogs' responded. Cook was later to testify that he watched Donald until he rounded the first clump of bushes, then returned to the restaurant, and before entering the restaurant he noticed that the 'two dogs' were at the rear of the Hamilton house, which is a few feet from the restaurant. Mrs. Hamilton testified that she arrived at the restaurant while the customer, Mr. Cook, was still standing outside, and Donald was not in sight, but her two dogs, Bozo and another which answered to the name of either 'Sputnik' or 'Fuzzy' (known hereinafter as Fuzzy), were seen by her behind the house at the garbage cans.

Donald testified that when he was on his way home he was approached by Bozo who jumped on his bike and knocked it over. Bozo then dragged him to the roadside and proceeded to bite him repeatedly. Bozo was then joined by two other dogs, which the victim testified also bit him. Donald positively identified these two other dogs as the Hamiltons' dog Fuzzy and another which had no proper name, but was in the testimony called the 'bitch' or 'gyp dog' (hereinafter referred to as the gyp).

Donald was due back at 8:15 and when he did not return at that time, his older brother, Ronnie, aged fourteen, looked out the kitchen windown toward the crest of a hill where he saw the wagging tail of a large dog. He called this to his mother's attention, she guessed what had happened, and both of them rushed to the scene. They testified that upon arrival at the crest of the hill they observed the defendants' dog Bozo biting the infant plaintiff's neck and further observed the presence of the gyp and Fuzzy close by the victim's body. Ronnie further observed the gyp and Fuzzy retreat into a woods near the Hamiltons' restaurant. However, Bozo brazenly continued his attack until hit by a stone hurled by Ronnie. Both Mrs. Smith and Ronnie testified that they noticed that Bozo was covered with blood.

Of the three dogs allegedly involved in the attack, Bozo, a cross between a St. Bernard and a German Shepherd, estimated to weigh between 125 and 150 pounds, was by far the largest. Used by Mr. Hamilton as a watchdog, Bozo was unchained regularly at about 1:00 a. m. so that he might freely roam the premises. It was Mr. Hamilton's custom to rechain Bozo every morning somewhere between the hours of 8:00 and 9:00 a. m. At the trial the uncontradicted testimony showed that five days before the attack on Donald, Bozo had attacked and bitten a stranded motorist who was walking across the Hamiltons' parking lot at about 7:00 in the morning. This attack was a continued and lengthy one, and Bozo was joined in the skirmish by his compatriot Fuzzy, which jumped on and mauled, although he did not bite, the motorist. The victim of that attack was taken to a hospital by Mr. Hamilton, who was fully informed of the circumstances of the attack. Bozo's animosity for human beings was also testified to by Floyd S. Smith, who stated that before the attack on his son he had worked for a period of ten months in the Hamiltons' garage close to the place where Bozo was chained, and during that period it was Bozo's habit to lunge and attempt to break his chain whenever humans approached him. Additionally, he stated that he had never seen anyone 'go up to' Bozo except the two defendants, and one of their employees, who was always armed with a stick on those occasions. The second dog to be identified as one which attacked Donald Smith, was Fuzzy, a collie type dog, weighing about fifty pounds. Fuzzy was known by his owners, the defendants, to have attacked and bitten Archie Etzler, an employee and frequent visitor to the Hamilton premises, on a date about two months before the attack on Donald. Etzler, testifying as to that incident, stated that Bozo and the gyp were with Fuzzy and that Bozo was also 'trying to get me' but that the latter stopped when he hollered at it. The gyp merely ran into the woods and did not attack or threaten to do so.

The gyp was approximately the same size as Fuzzy and, according to the Hamiltons, had lived on their property for some six years. The testimony showed that it was whelped at a place in the woods near the lane leading to the Smith property not far from the Hamiltons' restaurant, and it was frequently seen in the vicinity of the Hamiltons' dwelling, garage and restaurant. It was fed with the Hamiltons' other dogs, and ran with Fuzzy and Bozo regularly. There was no evidence to show that the gyp had ever bitten anyone, but all witnesses agreed that the dog ran wild and that no human could ever get close to it. Mr. Hamilton testified that he did not consider himself the owner of this dog but did admit that he fed it, and on two occasions prior to the attack on Donald had requested the county dog catcher to dispose of the animal.

On this appeal the appellant raises inter alia the factual issue of whether the testimony identifying Bozo and Fuzzy as members of the attacking trio was so contradictory and uncertain that it could not be the basis of a legal conclusion. In reviewing this factual question on appeal, Maryland Rule 886 a controls. This rule provides that after an action has been tried by the lower court without a jury, the judgment will not be set aside on the evidence unless clearly erroneous. Space Aero v. R. E. Darling Co., 238 Md. 93, 106, 208 A.2d 74 cert. den. 382 U.S. 843, 86 S.Ct. 77, 15 L.Ed.2d...