May Co. v. Drury

• Citation: 153 A. 61,160 Md. 143
• Decision Date: 14 January 1931
• Docket Number: 22.
• Parties: MAY CO. v. DRURY.
• Court: Court of Appeals of Maryland

153 A. 61

160 Md. 143

MAY CO. v. DRURY.

No. 22.

Court of Appeals of Maryland

January 14, 1931

Appeal from Superior Court of Baltimore City; Duke Bond, Judge.

Action by Anna Drury against the May Company, a corporation. Judgment for plaintiff, and defendant appeals.

Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Fendall Marbury, of Baltimore (William L. Marbury and L. Wethered Barroll, both of Baltimore, on the brief), for appellant.

Allan H. Fisher, of Baltimore (Fisher & Fisher, of Baltimore, on the brief), for appellee.

SLOAN J.

This is an appeal from a judgment for the appellee for injuries suffered by her as a result of being bitten by a parrot while in the pet shop of the appellant's department store.

There is but one exception, and that is to the granting of the plaintiff's (appellee's) first or damage prayer, the refusal of the defendant's prayers for an instructed verdict for the defendant, and the overruling of the defendant's special exception to so much of the plaintiff's prayer as presents the question of permanency of injuries. The only questions argued by the appellant were the legal sufficiency of the evidence and the plaintiff's contributory negligence.

The plaintiff testified that she had gone to the department store of the defendant in Baltimore, where she had made some purchases, and, while waiting for change, noticed the pet shop near by, and thought she "would go there and see if they had a parrot." While talking to a bird which was in a cage, "another bird which was loose came from the back part and of course I started to talk to it and it flew at me and the bird held on to my finger." The bird which did the damage was at large at the time because its cage was being cleaned, and it was the custom to let it out into the room while this was being done. The plaintiff contends that the offending parrot belongs to the class of animals known as feræ naturæ and that, as alleged in the first count of the declaration, the "injury was caused solely by the negligence of the defendant in leaving at large a vicious bird without any negligence on the part of the plaintiff." In the second count the allegation of the first count is repeated with the additional charge of the scienter of the defendant. The defendant's contention is that parrots do not belong to that class of animals from injury by which negligence may be presumed, and that, before recovery knowledge of their viciousness must be proved against the owner, and there being no evidence of such knowledge in this case, there should have been an instructed verdict for the defendant.

Both sides cite the dog case of Twigg v. Ryland, 62 Md 380, 50 Am. Rep. 226, as authority for their respective contentions, and they can well do so, as Judge Alvey, in the opinion, states the law applicable to both classes of animals, but holds that notice of the dog's propensity should have been brought home to the owner. The law of such cases as stated in the opinion (page 385 of 62 Md.), and as followed by this court since that time, is as follows:

"In regard to the law of the case, it is well settled, that if any person keeps an animal mansuetæ naturæ, of a ferocious or vicious disposition, accustomed to bite or attack mankind, knowing that it is possessed of such disposition or vicious propensity, he is bound to restrain such animal at his peril; and if he allows it to escape or go at large, he is liable for all the injury it may inflict by attacking persons in consequence of such ferocious propensity. As declared by the Queen's Bench, in May v. Burdett, 9 Q. B. 101, 'Whoever keeps an animal accustomed to attack and bite mankind, with knowledge that it is so accustomed, is, prima facie, liable in an action on the case, at the suit of any person attacked, and injured by the animal, without any averment of negligence or default in the securing or taking care of it. The gist of the action is the keeping the animal after knowledge of its mischievous propensities.' The owner or keeper of the dog or other domestic animal must be shown to have had knowledge of its disposition to commit such injury, and the burden of proving this fact is on the plaintiff, though it would be otherwise if the animal was of a nature to be fierce and untamable, such as bears, tigers, etc. Spring Co. v. Edgar, 99 U.S. 654 ."

See, also, 2 Cooley on Torts (3d Ed.) 690-708; Webb's Pollock on Torts, 613; Phillips v. Garner, 106 Miss. 828, 64 So. 735, and note, 52 L. R. A. (N. S.) 377; Vaughan v. Miller Bros. (W. Va.) 153 S.E. 289, and note, 69 A. L. R. 500; Bachman v. Clark, 128 Md. 245, 97 A. 440.

The plaintiff assumes that parrots are by nature wild, and that once wild they legally remain so. In 2 Kent's Commentaries, 348, 349, it is stated that deer, although feræ naturæ, may be reclaimed and domesticated, and that the common law refers the question whether an animal is wild or tame to knowledge of its habits derived from fact and experience. The plaintiff testified that she "has frequently talked to other parrots before and had been around them a great deal." "I thought the bird was tame and I was talking to the one that was loose." "It looked like it was very tame and I could pet it." William Wallie, head animal keeper and taxidermist at Druid Hill Park, Baltimore, who had at one time owned a bird store, testified without objection that he had handled hundreds of parrots in the last thirty-five years; that they kept them in wire cages because they could gnaw through wooden ones. He was not permitted to express an opinion as to their strength or whether it was safe to allow them to be at large; the court ruling that these were questions for the jury and not proper matter of expert testimony. We have no difficulty in deciding that parrots, even though they may be classed as animals feræ naturæ, are such as may become domesticated or tamed, and that they come within the rule laid down by Chancellor Kent that our knowledge of them is such as may be derived from fact and experience.

This conclusion, then, reduces the question to the negligence vel non of the defendant (appellant). 2 Cooley on Torts (3d Ed.) 706-709; 3 C.J. 88. When the plaintiff sustained the injury complained of, she was a customer in the store of the defendant, though not of the pet shop. No question, however is raised by the defendant of her right to be where she was. The duty of the proprietor under such circumstances, as stated in Cooley on Torts, 718 (3d Ed. 1258), is: "If one expressly or by implication, invites others to come upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit." Kann v. Meyer, 88 Md. 541, 549, 41 A. 1065; Isaac Benesch & Sons v....