Herring v. Schingler

• Decision Date: 30 January 1937
• Docket Number: No. 3037.,3037.
• Citation: 101 S.W.2d 394
• Parties: HERRING et al. v. SCHINGLER et ux.
• Court: Texas Court of Appeals

Page 394

101 S.W.2d 394

HERRING et al. v. SCHINGLER et ux.

No. 3037.

Court of Civil Appeals of Texas. Beaumont.

January 30, 1937.

Rehearing Denied February 3, 1937.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Suit by J. E. Herring and others against Joe Schingler and wife. From an order directing a verdict for defendants, plaintiffs appeal.

Affirmed.

Howth, Adams & Hart, of Beaumont, for appellants.

C. E. Pool, of Beaumont, for appellees.

WALKER, Chief Justice.

On the 20th day of June, 1934, Betty Jim Herring, seven years old, while playing in her yard on Sabine Pass avenue in the city of Beaumont, was bitten by a stray dog; her injuries were severe, and, on medical advice, she was given the treatment for rabies. This suit was brought by appellants, J. E. Herring and wife, Betty Jim's father and mother, for themselves and as her next friends, against Mr. and Mrs. Joe Schingler, appellees, claiming damages for the injuries suffered by Betty Jim. Appellants alleged that the dog belonged to appellees; they pleaded two theories of recovery:

First. "That said dog was of a vicious disposition and had on previous occasions bitten other people, among them being Joe Schingler, one of the defendants herein; the vicious disposition of the dog and its propensity to bite people was well known to the defendants, or could and should have been well known to them in the exercise of ordinary care;"

Second. "On the same day and just prior to the time the defendants' dog attacked Betty Jim Herring, Joe Schingler was treating this dog for the mange by washing it in a solution of creosote and water, which treatment irritated the dog and caused him to bite the defendant, Joe Schingler. In treating the dog as above described, defendant failed to tie the dog or confine him in a space from which he could not escape, and as a result thereof, after biting the defendant, he left the premises of defendant, and in a few minutes thereafter, still smarting from the effect of the mange treatment, attacked Betty Jim Herring, which failure or omission of defendant to tie the dog or confine him while treating him for the mange was negligence, and as a direct and proximate result of defendant's negligence in failing to confine the dog, the plaintiffs herein were injured as above set out."

Another ground of negligence alleged by plaintiffs was: "Plaintiffs would further show that defendants were negligent in that after the dog had bitten the defendant, Joe Schingler, it was permitted to leave the premises of defendants and defendants made no effort to restrain the dog when said dog could have been restrained by use of the means at defendants' command without danger to themselves, or to warn persons on the public street down which the angered and vicious dog was going, and as a direct and proximate result of defendants' failure to restrain the dog, or to warn those in its path of its vicious disposition and irritated condition, the plaintiffs suffered the injuries hereinbefore set out."

Appellees answered by demurrers, general denial, etc.

On conclusion of the evidence, the trial court instructed the jury to return a verdict in favor of appellees on two grounds: First, that the evidence did not raise against appellees the issues of negligence pleaded by appellants; second, the evidence failed to raise the issue that appellees owned the dog that bit little Betty Jim.

The testimony on the issues of negligence was as follows: Appellees lived on Sabine Pass avenue about four blocks from the Herring home, and had lived there many years prior to June 20, 1934. On that date they owned a valuable Chinese Chow dog named Chink about two and one-half years old that they had raised from a puppy. Many witnesses testified in the case who had known Chink from the day appellees brought him into their home. All these witnesses testified that Chink was not a vicious dog. Mrs. Schingler maintained an office in her home, and Chink spent most of the time in the office with his mistress, and was petted by her clients. Chink played around the neighborhood, was in and out of a garage just across the street, a bakery, and other places of business near the Schingler home. There was no testimony that this dog ever committed a vicious act prior to the morning of June 20. But, if that point be conceded, appellants say that Chink left the Schingler home on the morning of the 20th...