Marcum v. Bellomy, 13316
| Decision Date | 19 March 1974 |
| Docket Number | No. 13316,13316 |
| Court | West Virginia Supreme Court |
| Parties | James Dorwin MARCUM et al. v. Clarence BELLOMY et al. |
Syllabus by the Court
1. 'Where a participant in a transaction is incompetent to testify, (his) statements may nevertheless be admitted as original evidence, if made under such circumstances as to constitute part of the Res gestae.' Syllabus Point 2, State v. Coram, 116 W.Va. 492, 182 S.E. 83 (1935).
2. The purpose of Chapter 19, Article 20, Section 13, Code of West Virginia, 1931, as amended, is to place responsibility for damage done by dogs upon the owners of such dogs without requiring a demonstration of negligence on the part of such owner, and while the words of the statute 'who permits such dog to run at large,' would avail a person a defense on his own property and a defense if a third party were to enter upon the land and release a dog properly confined without the owner's knowledge, consent, or implied consent, a dog is permitted to run at large, as contemplated by the statute, if he is not properly secured.
John L. Hash, Huntington, for appellants.
William J. Wells, Wayne, for appellees.
This is an appeal from a final judgment of the Circuit Court of Wayne County in which the Circuit Court directed a verdict for the defendants. Plaintiff James Dorwin Marcum is an infant who was allegedly injured when bitten in the face by a large German Shepherd dog owned by defendants. Plaintiff Leslie Marcum is the father of James.
On February 17, 1971 James was playing around or on a swing located in the yard of Mary M. Johnson, his great grandmother, approximately fifteen feet from a forty-two inch high fence between the property of Mrs. Johnson and the defendants. The child was playing alone and his mother, Barbara C. Marcum, was observing him while standing at a glass storm door inside of the house while preparing lunch. No one except Mrs. Marcum observed the child playing, and at the time that the injury occurred Mrs. Marcum had momentarily diverted her attention to the stove which was out of the line of sight of the door. As she went to the stove to fill a plate for lunch, she heard screams and immediately returned to the door to observe her son in the yard with the defendants' large dog nearby. She promptly ran to James and found him bleeding and screaming, and the child was taken to the Cabell Huntington Hospital. As a result of the accident, James received severe lacerations near his right eye and the left corner of his mouth, which produced scars which are allegedly readily apparent and disfiguring. The child was operated upon by a plastic surgeon, and at the trial the surgeon testified that in order to achieve any reconstruction of the disfiguring scars, at least two subsequent operations will be necessary.
During the course of the trial the plaintiffs sought to introduce into evidence what the child told his mother immediately after the accident occurred. In narrating the accident Mrs. Marcum made the following response:
'. . . I ran towards the child I said, He had his hand over his face and blood was all over him, and he said, 'Prince bite me."
Upon objection of defendants' counsel, the court instructed the witness not to testify concerning what the child said to her.
The questions presented for decision in this case are whether the court should have admitted into evidence the testimony of the mother concerning what her son said to her immediately after the accident, and the proper interpretation of the West Virginia statute imposing liability upon a dog owner for dogs running at large, Chapter 19, Article 20, Section 13, Code of West Virginia, 1931, as amended.
The defendant argues that as a child under the age of six is presumed to be incompetent to testify as a witness, State v. Michael, 37 W.Va. 565, 16 S.E. 803 (1893), testimony should not be admitted concerning what he said to his mother immediately following the accident, in spite of the fact...
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Jividen v. Law
...cases that the scienter cause of action sounded in negligence rather than strict liability. For instance, in Marcum v. Bellomy, 157 W.Va. 636, 203 S.E.2d 367 (1974), we discussed West Virginia Code § 19-20-13 (1931), which imposes liability on dog owners and keepers for injuries that occur ......
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