Massengile v. Piper

• Decision Date: 07 October 1940
• Docket Number: No. 38.,38.
• Citation: 293 N.W. 897,294 Mich. 653
• Parties: MASSENGILE v. PIPER et ux.
• Court: Michigan Supreme Court

294 Mich. 653

293 N.W. 897

MASSENGILE

v.PIPER et ux.

No. 38.

Supreme Court of Michigan.

Oct. 7, 1940.

Action by Mattie Massengile against Frank S. Piper and Florence L. Piper, his wife, jointly and severally for damages for personal injuries inflicted by a dog. From a judgment notwithstanding the verdict, plaintiff appeals.

Judgment set aside and judgment entered in accordance with verdict.

SHARPE, CHANDLER, and NORTH, JJ., dissenting.

Appeal from Circuit Court, Wayne County; Louis C. Cramton, judge.

Argued before the Entire Bench, except BUSHNELL, J.

Nedwin L. Smokler, of Detroit (Leonard J. Grabow, of Detroit, of counsel), for appellant.

Hesse & Littell, of Detroit (John B. Poole of Detroit, of counsel), for appellees.

McALLISTER, Justice.

I am of the opinion that the question of whether defendants had knowledge of the vicious propensities of their dog was for the jury. There was considerable evidence that the dog manifested a savage disposition. Although plaintiff was a servant in the home, the dog repeatedly growled whenever she came to work. When Mrs. Piper would go to the door to let the plaintiff into the house, it would be necessary to hold the dog to quiet him. There was testimony that when other persons came to the door, it would be necessary to grab the dog and hold him in order to keep him from jumping at such visitors. When plaintiff was attacked by the dog, a neighbor, William Dawe, rushed over to the house and found that plaintiff had been severely bitten and was lying on the floor and the dog was standing above her and growling. Plaintiff testified that she had a conversation with defendant Florence Piper before the accident and that Mrs. Piper had told her that she had previously had a very good maid in her employ, but that she could not keep her on account of the dog and that they did not think that they could keep him because of the trouble he was giving them. There was further testimony by Dr. Kline, a practising veterinary surgeon, that dogs of the chow breed, by general nature and character, have a tendency to be vicious and that such breed is temperamental, undependable, and treacherous. Dr. Taylor, a veterinarian, called as a witness by defendants, stated that in his practice in the handling of a dog of the chow breed, there was a strong likelihood that, if he approached such a dog in his regular duties ‘without first making up to him,’ he might be bitten. Mr. Schuman, who had been engaged in the business of caring for dogs for a period of 32 years and who maintained a large kennel, boarding a number of chow dogs, testified that the chow breed was not reliable, had a bad and untrustworthy disposition; that they are apt to bite or snap at persons; and that, even after making up with one, he would not turn his back on it. Under the evidence above recited, it was a question for the jury to determine whether defendants knew or had reasonable grounds to believe that the dog in question had vicious propensities.

The judgment non obstante veredicto should be set aside and a judgment entered in accordance with the verdict of the jury, with costs to plaintiff.

BOYLES and BUTZEL, JJ., concurred with McALLISTER, J.

I concur in the opinion of Mr. Justice McALLISTER.

WIEST, Justice (concurring).

Knowledge of viciousness of a dog does not necessarily await a first bite.

SHARPE, Justice (dissenting).

This is an appeal from a judgment entered notwithstanding a verdict rendered by a jury in favor of plaintiff. The action is for damages for personal injuries inflicted upon her by a chow dog kept and owned by defendants who are husband and wife.

The material facts are not in dispute. Plaintiff was employed by defendants in their home doing laundry and general housework. She worked one or two days a week, arriving about 8 a. m., and leaving about 4:30 p. m. On June 8, 1937, Mrs. Piper informed plaintiff that she was going away and would not return until after plaintiff left for the days. She instructed plaintiff to open the gate to an enclosure where the dog was confined and to let him into the house. About 4 p. m., in accordance with the instructions given her, plaintiff went to the enclosure and as she came to the gate, the dog ran up on the gate and then ran to the back of the enclosure. Plaintiff returned to the house and went back a second time; and when plaintiff opened the gate, the dog immediately jumped upon her, knocked her down, severely biting her arms and hands. The attack lasted about two minutes when a neighbor came to her rescue. When the cause came on for trial, testimony was introduced that plaintiff had been in the employ of defendants for a period of about six months; that plaintiff did not provoke the attack; that the dog weighed about 40 or 50 pounds, was about 13 months old at the time plaintiff received her injuries and had been kept by defendants since he was two months old. It also appears that when plaintiff crime to work through the back door of defendants' house, the dog would bark and growl at her. At such times Mrs. Piper would hold on to the dog and quiet him down. The dog was kept in an enclosure 20 by 27 feet, but at night was kept in the house.

Plaintiff appeals and contends that there was evidence of scienter in the case. In deciding this case we have in mind that plaintiff is entitled to have her evidence given the most favorable construction it will bear and to have the benefit of every fair inferencethat may be drawn from the evidence, guided by sound processes of reasoning and applicable principles of law, Frebes v. Michigan Central Railroad Co., 218 Mich. 367, 188 N.W. 424; and that Act No. 73, Pub.Acts 1939, dispensing with the necessity of proof of scienter in actions arising out of dog bites, has no application to the facts in the case at bar.

The language used in the recent case of Grummel v. Decker, 294 Mich. 71, 292 N.W. 562, 564, is applicable to the facts herein involved. In that case we said:

‘In all cases arising under the common law, it is necessary for plaintiff to aver and prove scienter. That is, that the dog owned by the defendants was of a dangerous character and that the defendants knew it.

“Scienter is not a word of mystery, or magic meaning. It is merely an expressive word retained from the old Latin forms of pleading signifying in the connection commonly used that the alleged crime or tort was done designedly, understandingly, knowingly, or with guilty knowledge. If necessary to affirmatively negative the supposition of ignorant innocence under the...