Heath v. Board of Com'rs of Guilford County

• Decision Date: 14 April 1977
• Docket Number: No. 63,63
• Citation: 292 N.C. 369,233 S.E.2d 889
• Court: North Carolina Supreme Court
• Parties: In the Matter of Ted HEATH, by and through his father, Donald Heath, Plaintiff, v. BOARD OF COMMISSIONERS OF GUILFORD COUNTY, Defendant and Third-Party Plaintiff, v. Lloyd S. FREEMAN, Third-Party Defendant.

Page 889

233 S.E.2d 889

292 N.C. 369

In the Matter of Ted HEATH, by and through his father,

Donald Heath, Plaintiff, v. BOARD OF COMMISSIONERS OF GUILFORD COUNTY, Defendant and Third-Party Plaintiff, v. Lloyd S. FREEMAN, Third-Party Defendant.

No. 63.

Supreme Court of North Carolina.

April 14, 1977.

William L. Daisy, Asst. County Atty., Greensboro, for defendant and third-party plaintiff-appellant.

Bencini, Wyatt, Early & Harris by William E. Wheeler, High Point, for third-party defendant-appellee.

Gardner & Tate by Rossie G. Gardner and Raymond A. Bretzmann, High Point, for plaintiff-appellee.

SHARP, Chief Justice.

In 1973 G.S. 67-13 (1965) provided:

"(I)t shall be the duty of the county commissioners, upon complaint made to them of injury to person or injury to or destruction of property by any dog, upon satisfactory proof of such injury or destruction, to appoint three freeholders to ascertain the amount of damage done, including necessary treatment, if any, and all reasonable expenses incurred, and upon the coming in of the report of such jury of the damage as aforesaid, the said county commissioners shall order the same paid out of any moneys arising from the tax on dogs as provided for in this article. And in cases where the owner of such dog or dogs is known or can be ascertained, he shall reimburse the county to the amount paid out for such injury or destruction. To enforce collection of this amount the county commissioners are hereby authorized and empowered to sue for the same."

1933 N.C.Sess.Laws ch. 547, amended G.S. 67-13 for the counties of Guilford and Forsyth by adding at the end thereof the following:

"Provided, that when any claim is presented to the Board of County Commissioners under authority of this section said Board may, in its discretion, in lieu of the procedure above provided for in this section, require the claimant to appear before said Board at its next regular meeting and furnish proof in support of said claim. After hearing the evidence submitted for and against said claim said Board shall ascertain the amount of damages, if any, and shall order the same paid out of any monies arising from the tax on dogs, as provided for in this section. The claimant may, within ten days, appeal to the Superior Court by giving written notice to the said Board as in cases of appeal from a Justice of the Peace."

The Board contends that when the General Assembly enacted G.S. 67-13 it never intended to impose strict liability upon a county for all injuries and destruction caused by dogs or to abolish common law defenses previously existing to claims based on injuries inflicted by dogs. The most cursory reading of the foregoing statute, however, refutes this contention. It is immediately obvious that the statute made no mention of the common law elements imposing liability on dog owners for the misdeeds of their animals. There are no requirements: (1) that the dog be dangerous and vicious toward persons; (2) that the owner know of the dog's propensities; or (3) that the owner be negligent in failing to confine the dog or in his manner of restraining the dog. See Sink v. Moore, 267 N.C. 344, 148 S.E.2d 265 (1966). Nor does the statute mention the common law defense of contributory negligence or trespass. Cf. Hobson v. Holt, 233 N.C. 81, 62 S.E.2d 524 (1950) (contributory negligence available as a defense in a suit to recover damages inflicted by an animal); Burke v. Fischer, 298 Ky. 157, 182 S.W.2d 638 (1944) (assumption of risk and provocation are acceptable defenses to a suit to recover damages inflicted by a dog). On its face, the statute required the county to honor a plaintiff's claim simply "upon satisfactory proof" of "the amount of damage done" and of "all reasonable expenses incurred." Thus, whether the injury was caused by a playful or an angry dog has been held to be without significance to a recovery under the act. In re Truitt, 269 N.C. 249, 152 S.E.2d 74 (1967).

To the limit of monies arising from the tax on dogs, G.S. 67-13 imposed absolute liability on the county for injury and destruction caused by a dog and on the dog owner, who is required to reimburse the county "to the amount (it) paid out" for such damage. See Board of County Commissioners v. George, 182 N.C. 414, 109 S.E. 77 (1921); Note, Torts Dog Owner's Statutory Liability in North Carolina, 45 N.C.L.Rev. 1118, 1128 (1967). The language of the statute is clear; its purpose and meaning are unmistakable. Thus, "there is no room for construction". State v. Norfolk Southern R. Co., 168 N.C. 103, 82 S.E. 963 (1914). Accord, Perrell v. Beaty Service Co., 248 N.C. 153, 102 S.E.2d 785 (1958).

This statute absolves neither the county nor the dog owner for injuries inflicted by the dog albeit the injured party was a trespasser and the dog restrained by a chain when he inflicted the injury. We therefore may not construe these exceptions into the act. Accordingly, on the facts of this case, we overruled defendant's assignment of error No. 3, which challenges the judge's instructions to the jury that if they found plaintiff had been injured by a dog in Guilford County, the county would be liable for the amount of damages inflicted. In so doing we note the absence of any evidence that claimant was tormenting or mistreating the dog at the time he was attacked. On the contrary, all the evidence tended to show he was unaware of the dog's presence.

We further note that this ruling is in accord with the decisions of other jurisdictions which have had statutes similar to G.S. 67-13. See Town of Wallingford v. Neal, 108 Conn. 152, 142 A. 805 (1928); McGlone v. Womack, 129 Ky. 274, 111 S.W. 688 (1908); Town of Richmond v. James, 27 R.I. 154, 61 A. 54 (1905).

Effective 1 February 1974, four days before claimant filed his claim with the Board, G.S. 67-13 and all its local modifications were repealed by 1973 N.C.Sess.Laws, ch. 822, § 6 (repealing act). The Board and Freeman contend that the repeal of G.S. 67-13 absolved each of them of any liability for the injuries which Freeman's dog inflicted upon claimant. We must therefore consider the effect of the repeal upon this claim. The rules have been clearly stated:

"When statutes providing a particular remedy are unconditionally repealed, the remedy is gone." Spooner's Creek Land Corp. v. Styron, 276 N.C. 494, 496, 172 S.E.2d 54, 55 (1970). "In order to permit a proceeding to survive (the repeal of the underlying statute authorizing the proceeding or creating the cause of action) there must be a saving clause in the repealing act". In re Incorporation of Indian Hills, 280 N.C. 659, 663, 186 S.E.2d 909, 912 (1972). Citing these cases, third-party defendant Freeman successfully argued before Judge Crissman that the county's right to reimbursement had disappeared with the repeal of G.S. 67-13. However, when the county sought to avail itself of the same doctrines on its motion for summary judgment against Heath, Judge Collier correctly ruled that G.S. 67-13 had not been unconditionally repealed. The repealing act contained a savings clause.

Section 9 of the repealing act provides:

"No provision of this act is intended, nor may any be construed, to affect in any way a right or interest, public or private:

"(a) Now vested or accrued, in whole or in part, the validity of which might be sustained or preserved by reference to a provision of law repealed by this act (emphasis added); or

"(b) Derived from or which might be sustained or preserved in reliance upon, action . . . taken before the effective date of this act pursuant to or within the scope of a provision of law repealed by this act."

Section 12 provides:

"No action or proceeding of any nature . . . pending at the effective date of this act is abated or otherwise affected by the adoption of this act."

The all-inclusive language of the two subsections of section 9 and section 12 constitutes "saving clauses" which clearly manifest the legislative intent that the repeal of G.S. 67-13 not extinguish any legal right existing before 1 February 1974. Claimant's injury having been inflicted by a dog on 6 May 1973, we hold that his claim survived the repeal of G.S. 67-13 under the specific protection of § 9(a) of the Repealing Act. The question whether the county's right to reimbursement from Freeman survived the statute's repeal is somewhat more complicated.

Freeman argues (1) that the county's statutory right to reimbursement is similar to indemnity or subrogation and, as such, it could not accrue or vest, in whole or in part, until the county had paid Heath's claim; and (2) that since the county has paid claimant nothing it has no action against Freeman for reimbursement. In support of his contentions Freeman relies upon Pittman v. Snedeker, 264 N.C. 55, 57, 140 S.E.2d 740, 742-43 (1965), Insurance Co. v. Gibbs, 260 N.C. 681, 687, 133 S.E.2d 669, 674 (1963), and similar cases which hold that an indemnitee's right of action accrues at the time of payment, not before.

However, since the enactment of G.S. 1A-1, Rule 14 (1969), at any time after commencement of an action "a defendant, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him" (emphasis added). It is, therefore, no longer true that an indemnitee cannot sue the party ultimately liable to him until after the indemnitee has paid the claim.

The purpose of Rule 14 is to promote judicial efficiency and the convenience of parties by eliminating circuity of action. "When the rights of all three parties center upon a common factual setting, economies of time and expense can be achieved by combining the suits into one action. Doing so eliminates duplication in the presentation of evidence and increases the likelihood that consistent results will be reached when multiple claims turn upon identical or similar proof. Additionally,...