Hood v. Waldrum

• Decision Date: 29 March 1968
• Citation: 434 S.W.2d 94,58 Tenn.App. 512
• Parties: Malcolm HOOD, Jr. et ux., Mrs. Christine H. Hood, Plaintiffs-in-Error, v. Mrs. Lula Pearl WALDRUM, Defendant-in-Error. Malcolm HOOD, Jr. et ux., Mrs. Christine H. Hood, Plaintiffs-in-Error, v. R. C. WALDRUM, Defendant-in-Error.
• Court: Tennessee Court of Appeals

Page 94

434 S.W.2d 94

58 Tenn.App. 512

Malcolm HOOD, Jr. et ux., Mrs. Christine H. Hood, Plaintiffs-in-Error, v. Mrs. Lula Pearl WALDRUM, Defendant-in-Error.

Malcolm HOOD, Jr. et ux., Mrs. Christine H. Hood, Plaintiffs-in-Error, v. R. C. WALDRUM, Defendant-in-Error.

Court of Appeals of Tennessee, Middle Section.

March 29, 1968.

Certiorari Denied Nov. 4, 1968.

Jerry Colley and Billy C. Jack, Columbia, for plaintiffs in error.

Hugh T. Shelton, Jr. and T. Edward Lawwell, Columbia, for defendants in error.

OPINION

TODD, Judge.

In these consolidated cases Malcolm Hood, Jr., and Christine Hood, defendants, have appealed in error from separate verdicts and judgments in favor of plaintiffs, R. C. Waldrum and Mrs. Lula Waldrum, for damages resulting from an alleged attack upon Mrs. Waldrum by defendants' dog.

The salient facts are uncontroverted. The defendants are husband and wife. They reside in a semi-rural situation in which three homes are grouped in close proximity with no other houses in 'hollering distance'. For about nine years, the defendants have owned a large dog, which is kept as a pet and, to some degree, for protection. About 1962, he allegedly 'snapped' at the ankle of a neighbor's child. In 1963, he allegedly bit an electric meter reader on the hand. There is no other evidence of violent or mischievous conduct on the part of the dog, in fact, he is pictured by defendants as a harmless pet. Defendants did maintain two 'bad dog' signs in their yard, but they insist that it was to keep salesman away. Defendants did customarily keep the dog tied, but they insist that this was because he had 'run off' and had been shot on a previous occasion.

The plaintiff, Mrs. Waldrum, is a dealer in cosmetics and walks from door to door selling her wares. Once previously she called upon Mrs. Hood who responded that she was not interested in plaintiff's cosmetics. Plaintiff had seen the 'bad dog' signs several times and had previously seen the dog, himself, a large heavy animal, tied up. Plaintiff had been warned by Mrs. Hood's mother who lived next door that defendants had a 'bad dog'.

On the day of the injury plaintiff knocked on defendant's front door without response. She then went to a side door and knocked without response. As she left the side door she saw Mrs. Hood in the back yard washing a trash can with a garden hose and called to her. Defendant's dog then came from behind the house and leaped toward her. She either fell or was knocked to the ground. The dog made no attempt to bite or otherwise injure her. She suffered a broken leg, resulting in the pain, disability and expenses for which the two plaintiffs brought their respective suits.

As originally filed the declarations alleged negligence in allowing an animal with known vicious propensities to run loose and in allowing said animal to attack plaintiff. To this declaration a general issue plea was filed.

On the first day of the trial after the jury had been selected and sworn and over objection of defendants, the plaintiffs were permitted to amend their respective declarations by adding second counts identical in substance. The pertinent portion of Mr. Waldrum's amendment is:

'That at the time and place aforesaid the defendants were the owners of said dog, had knowledge that said dog was of vicious propensities and yet allowed said dog to be loose and not restrained, and therefore, said defendants are liable to the plaintiff for the damages which he received resulting from the injuries to his wife caused by the attack described in this declaration.'

At the conclusion of the trial the jury announced verdicts in favor of the plaintiffs 'on the second count only' and further reported, 'we decided that the Hoods were not guilty of negligence and therefore we should disregard the First Count.' Pursuant to said verdicts, judgments were entered in favor of plaintiffs upon the second counts of their declarations, and in both cases the first counts were dismissed.

The first assignment of error is:

'The Trial Court erred in charging the jury that under the factual situation presented in these cases, the doctrine of assumption of risk, as a matter of law, did not apply, because in giving such instruction, the Judge invaded the fact-finding province of the jury since there was material evidence from which the jury could find that the Plaintiff, Mrs. Waldrum, deliberately exposed herself to the danger and thereby assumed the risks incident thereto.'

The portion of the charge complained of is as follows:

'Now there has been something said about this doctrine of assumption of risk as it might apply to the Second Count of the declaration and you could visualize a factual situation where the doctrine of assumption of risk would apply, that is if the injured person had full knowledge of the dangerous propensities of the animal or the injured person intentionally or on purpose or unnecessarily put himself in the way of the animal or the dog, then there would be an assumption of risk so as to bar a recovery, can't be absurd about these things if a person knew of the dangerous situation, had personal knowledge of it or aggravated the animal or put his hand in a cage where a snake was or went in a cage with a vicious dog or something of that kind, certainly there would be an assumption of risk though as would bar a recovery even under the Second Count of the declaration, but I'm instructing the Jury in this case that under the factual situation as presented here to us that this doctrine of the assumption of the risk on the part of the plaintiff and the plaintiffs in these cases does not apply. The proof does not show or justify an inference that this lady knowingly placed herself in a position of danger, the theory, the insistence of the defendants, one theory is that this animal was not dangerous, so I'm instructing the Jury as a matter of law that this doctrine of the assumption of the risk does not apply to the factual situation of this case, that is under the Second Count of the declaration.'

Superficially the first assignment presents only the question of whether there was evidence upon which reasonable minds might agree that plaintiff 'voluntarily assumed the risk of injury.' This question will be first considered in the light of the physical situation, information received by the plaintiff, and her actions on the day of her injury.

Pictures included in the record portray a modest home situated on a hillside above the road so that it was necessary for visitors to walk uphill along a driveway to reach the house. At the entrance to the driveway was a sign bearing the words 'bad dog'. The drive approached and passed the house on the lower side of the lot, so that in leaving the drive and approaching the house it was necessary for a visitor to walk uphill across the lawn. The uphill grade continued to the opposite end of the house where another 'bad dog' sign was placed for the benefit of visitors who might enter the premises from an adjoining neighbor's premises. There were four entrances to the house, one on each end and one front and back.

Having been warned by a neighbor that defendants had a 'bad dog', and having seen one of the 'bad dog' signs on the day of injury and previous occasions, plaintiff proceeded to the front door of defendant's home. Receiving no response at this door, she proceeded to the door on the upper, or west end of the house, farthest from the drive, and there knocked again without response. Plaintiff insists that she did not go any nearer the back yard than this latter door, however the physical facts would tend to corroborate defendant's testimony that plaintiff came around the back corner of the house. The latter 'side' door is near the front corner of the house, so that a person at or near said door would be able to see very little of the back yard. It would be necessary for a person to proceed from the side door to, or almost to the rear corner of the house in order to see most of the back yard.

From the foregoing evidence the jury could reasonably have found that the plaintiff voluntarily assumed the risk of the injury she received.

Contributory negligence and assumption of risk are generally issues of fact for the jury. Miller v. Chattanooga Auto Parts, Inc. 350 F.2d 851 (6 Cir., 1965). Kendall Oil Co. v. Payne, 41 Tenn.App. 201, 293 S.W.2d 40 (1955).

Where the evidence is in conflict or where different conclusions might reasonably be drawn therefrom, questions of negligence, ordinary care and proximate cause are for the jury. Management Services, Inc. v. Hellman, 40 Tenn.App. 127, 289 S.W.2d 711 (1955).

Only where but one conclusion can reasonably be reached from the evidence and inferences is it proper for the trial court to direct a verdict. ibid.

The first assignment of errir is sustained.

Inasmuch as a further trial will be necessary, it is deemed proper to examine in depth the proper rules applicable to cases of this type. A review of the myriad decisions on injury by dogs reveals the wide diversity and uncertainty of authority and the need for a clear statement of the proper rules applicable to the liability of dog owners.

It is hornbook tort law that all behavior of parties to a lawsuit falls into one of three general categories. The actions of a defendant or a plaintiff may be classified according to the circumstances as (1) no negligence (2) ordinary negligence, or (3) gross negligence. Some authorities recognize further classifications designated as 'wilful or wanton conduct', 'intentional injury', or 'maintenance of an absolute nuisance'; and some liability is created by statute; but each of these special classifications may be grouped with one or more of the three fundamental classes for the purposes of this discussion.

It is equally accepted, in this jurisdiction at least, that (pretermitting degree of causal effect) the three classifications of a party's actions have the following effect in...