Keane v. Schroeder, 569A86

• Decision Date: 30 November 1970
• Docket Number: No. 1,No. 569A86,569A86,1
• Citation: Keane v. Schroeder, 264 N.E.2d 95, 148 Ind.App. 131 (Ind. App. 1970)
• Parties: Michael KEANE, by his next friend, Richard L. Keane, Appellant, v. Richard SCHROEDER, Appellee. Richard L. KEANE, Appellant, v. Richard SCHROEDER, Appellee
• Court: Indiana Appellate Court

Page 95

264 N.E.2d 95

148 Ind.App. 131

Michael KEANE, by his next friend, Richard L. Keane, Appellant, v. Richard SCHROEDER, Appellee.

Richard L. KEANE, Appellant, v. Richard SCHROEDER, Appellee.

No. 569A86.

Appellate Court of Indiana, Division No. 1.

Nov. 30, 1970.

Thomas M. Moorhead, Fort Wayne, for appellants.

Livingston, Dildine, Haynie & Yoder, Fort Wayne, for appellee.

LOWDERMILK, Chief Judge.

The case of Michael Keane, by his next friend, versus Schroeder was at issue on plaintiff's second amended complaint in one paragraph, and appellee's answer in four paragraphs, the first being in compliance with Supreme Court Rule 1--3. The second paragraph of answer was filed to pleading paragraph 2, which was dismissed and is not before the court. The third paragraph alleged defendant-appellee's dog was secured and the fourth paragraph alleged appellant, a four year old boy, to be a trespasser or licensee on premises of appellee and that appellee owed no duty to appellant other than to refrain from any willful or wanton act which would result in injury to appellant.

To the affirmative paragraphs of answer the plaintiff-appellant filed reply, pursuant to Rule 1--3.

In the case of Richard L. Keane v. Richard Schroeder the issues were formed by plaintiff-appellant's amended complaint alleging appellant to be the father of the appellant Michael Keane, and otherwise the same allegations as those alleged in Michael's second amended complaint. The alleged damages were hospital and medical expenses rather than personal injuries as alleged in Michael's second amended complaint.

To appellant Richard L. Keane's amended complaint appellee filed answer in three paragraphs, of which the first was in compliance with Rule 1--3 of the Supreme Court; the second paragraph alleged appellee's dog was secured and the third paragraph alleged appellant Michael Keane to be a trespasser or licensee in identical language as the answer to Michael's complaint.

Appellant filed his reply to the second and third paragraphs of answer, pursuant to Supreme Court Rule 1--3.

The causes of action were consolidated; a trial was had by jury and at the close of appellant's evidence appellee filed a motion for directed verdict in each case, which was, in each case, sustained by the court. The jury, in compliance with the court's instruction, returned its verdict in each case for the defendant-appellee and on which the court timely entered its judgment that appellant, in each case, take nothing.

Appellants timely filed their respective motions for new trial on the grounds that: (1) The verdict and decision of the court is contrary to law; (2) Error of law occurring at the trial, in that the court sustained defendant's motion for directed verdict for defendant, and (3) Error of law occurring at the trial in the court directing the jury to return a verdict for the defendant.

Respective motions for new trial were overruled, after which appellants timely prayed an appeal, which was granted in each case.

In the motions for new trial appellants assigned as error in each cause that the court erred in overruling appellant's motion for new trial.

The complaints alleged that Michael Keane was a four year old boy; that the appellee kept a chow dog which he knew had bitten a five year old girl prior to biting appellant Michael Keane, that the dog was vicious and appellee knew he was vicious; that appellee knew small children could and would come into contact with the dog and that appellant was injured by the dog and thereby sustained damages.

Basically, the facts are that the parties lived on the same block in Fort Wayne, Indiana, with the homes almost directly opposite, but on separate streets paralleling one another.

The appellee kept a reddish-orange chow dog which weighed about 65 pounds in his backyard, which was enclosed with a house and garage on two sides and by a woven wire fence approximately three to three and one-half feet high on the remaining two sides. This dog was permitted to use the entire area of the backyard, having access thereto by a leash, which leash was affixed to a clothes line between the said buildings. The dog could not, while on the leash, get outside the yard.

In the yard was a swing, teeter-totter board and ladder arrangement, a tractor tire filled with sand, and also several bicycles. This yard was a good playground for appellee's children and other children in the neighborhood, including appellant, Michael Keane, and was freely used by such children at about all reasonable playtime hours for children. In the fence there was a gate near the house which small children the age of the appellant, Michael, were capable of opening.

On the 19th day of June, 1964, one Rhonda Miller, a five year old neighborhood girl, was bitten by appellee's chow dog while she was playing in appellee's backyard. Appellee had knowledge, and testified, that Rhonda Miller had been bitten by his dog.

As the result of the log bite, Rhonda Miller sustained a deep tear mark under her eye about two inches in length and at the end of her cheek she sustained a two inch tear mark, as well as a dozen or more holes in and out holes, in one side of her cheek and her nostrils were torn loose from either side. The nose was pulled loose from the bone structure and the dog's fangs had gone through her upper lip, her gums. She also had a deep hole that had gone right by and had just missed her jugular vein. She lost much blood at the time of her injuries.

Following the biting of Rhonda Miller by the dog, neighborhood children continued to play in appellee's yard with the dog chained on the wire, as aforesaid.

On October 28, 1964, appellant, Michael Keane, was playing in appellee's backyard alone, except for the presence of the chow dog, Toby, when a neighborhood girl heard him scream and looked into appellee's yard and saw the dog, Toby, biting Michael and attacking him. At this time a male neighbor who had lived in the neighborhood 22 years heard what sounded to him like a bunch of dogs fighting and went to the Schroeder yard where he could see through the fence and saw the chow dog down on Michael. The neighbor yelled to the dog to no avail, but appellee's daughter came out of the house and rescued Michael from the dog. Appellee's daughter, after rescuing appellant, Michael, handed him over the fence to this neighbor and the dog still jumped for the boy, trying to get at him, and was repulsed in his efforts by striking the end of his leash before he could reach the boy. At the time the dog was attacking appellant, Michael, Michael was in a squatting position and had his hands over his head in an attempt to protect himself, with the dog's paws on the boy's shoulders and the dog biting him on the head.

The dog, Toby, refused to obey the order of appellee's daughter to leave the boy alone, as she approached in her efforts to rescue the boy.

As the result of the attack the boy was cut on the scalp with cuts looking like they had been made by a razor blade, with the skin laid wide open. The dog was larger than and out-weighed the appellant, Michael Keane, and the entire attack took place in the backyard of appellee's property, with the dog leashed on his wire and inside the fence.

At the time appellant, Michael Keane, went to the yard of the appellee he was wearing a fire engine red plastic helmet put out by a gasoline company. This helmet was equipped with a speaker or amplifying device to amplify the voice of its wearer. Appellee further contends that the second bite, which was the biting of Michael Keane, was probably provoked by appellant, Michael Keane's use of such bright red helmet equipped with a microphone and amplifier in close proxmity to the dog when it was leashed to the clothes line in the fenced enclosure. Appellee further contends appellants wholly failed to establish that the biting of Michael was unprovoked.

We can find nothing in the record to indicate whether the amplifier was in working condition and we cannot find in the record that the appellant, Michael Keane, amplified his voice by use of the helmet and amplifier.

Appellee contends that before a prima facie case is established, it must be shown by substantive evidence of probative value:

(1) That the defendant kept and maintained a dog with 'vicious' or 'dangerous' propensities.

(2) That the defendant either knew, or in the exercise of reasonable care, should have known, of such 'vicious' or 'dangerous' propensities in the dog.

(3) That the defendant, with such knowledge, failed to keep the dog secure.

We agree that the biting of a person by a dog upon provocation is not sufficient to establish a vicious disposition of the dog. However, we can find no evidence in the record that Michael Keane provoked the dog, as the first knowledge of Michael Keane's being in the appellee's backyard with the dog came to those who heard the dog attacking Michael.

Appellee cites many cases to the effect that sudden pain or fright sometimes causes a dog to snap involuntarily. Circumstances must be considered in such a case to determine whether a dog, under such sudden pain or fright, which has previously bitten someone, is of a vicious or dangerous character and all surrounding facts and circumstances must be considered and the question addressed to the sound discretion of the court or jury.

The law in Indiana is that triers of the fact shall take into consideration their experiences in the ordinary affairs of the life of men in arriving at their finding and verdict, and this is so well settled that it needs no citation of authority. This court, has heretofore said, In Davoust v. Mitchell (1970), Ind.App., 257 N.E.2d 332, 336:

'* * * the trial court could consider the ordinary affairs in the lives of men and women and although this court cannot and does not weigh the evidence, we are of the opinion that in deciding whether the evidence is sufficient to sustain the judgment, that w...