McCarthy v. Croker

• Decision Date: 07 May 1976
• Docket Number: No. 4528,4528
• Citation: 549 P.2d 323
• Parties: Bernard S. McCARTHY, Appellant (Plaintiff below), v. Wayne CROKER and Dorothy Croker, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 323

549 P.2d 323

Bernard S. McCARTHY, Appellant (Plaintiff below), v. Wayne CROKER and Dorothy Croker, Appellees (Defendants below).

No. 4528.

Supreme Court of Wyoming.

May 7, 1976.

Bernard E. Cole, Cheyenne, for appellant.

T. A. Fennell, Cheyenne, for appellees.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

GUTHRIE, Chief Justice.

This appeal arises from the entry of a judgment of dismissal by the trial court at the close of plaintiff's case.

The facts are not involved. The Crokers, appellees here, own and live at a residence in a rural area north of Cheyenne, and on September 18, 1974, had two dogs on the premises. McCarthy, appellant herein, is an insurance man employed by an agency which had written several policies of insurance for appellees, and on this date had occasion to go to the Croker residence to service some of these policies.

At the time of the incident Crokers were not home. Appellant parked his car in the driveway near the porch and got out of the car to go to the house. Just before he arrived at the porch he was bitten by a large cross-breed dog, which he had not seen prior to being bitten. He then picked up some type of weapon, returned to the car, and wrote a note, which he left at the house, advising Croker of his visit and asking that Croker call him. Thereafter in a telephone conversation appellant advised Croker of the bite, inquiring whether the dog had a rabies inoculation, and appellant testified that Croker laughed and said he was glad to know the dog had bitten him and to know that he would take care of the premises.

In his original and amended complaints appellant asserts that these 'Defendants wrongfully kept a dog, well knowing him to be of a ferocious, vicious and mischievous disposition and accustomed to attach (sic) and bite man kind (sic).' Appellees answered with a denial of this allegation and asserted other separate defenses, which are not discussed because they are not material to our disposal.

The only evidence upon which appellant predicates this appeal, which he insists is proof of defendants' knowledge of the vicious character of this animal, is the testimony of Cox, a neighbor of Crokers, that the two dogs of appellees had chased, barked, and nipped at his horses, and that he told appellees of this when Croker came to Cox's home to complain about his horses being on Crokers' property. Cox further testified that the large dog-apparently the one which bit appellant-had come toward him, growling and snapping, and that he had attacked the dog and run him off. Cox did not at any time advise Croker of this attack, nor does the record reveal any knowledge on the part of the owner of the dog as to any such propensity to attack humans.

In sustaining the motion to dismiss, an examination of the record reveals that the trial judge clearly relied upon the failure to prove any knowledge by defendants of any disposition or propensity on the part of the dog to attack or bite people. This reliance must spring from the pleadings and the manner in which this case was presented. The trial judge noted the necessity of the proof of scienter. Appellant, with commendable candor, states in his brief:

'The determinative factor in the present case is knowledge of vicious propensities and the question must be viewed in the light most favorable to the Plaintiff.'

We have no quarrel with this statement. The action taken by a trial court in entering a directed verdict requires that we view the evidence of the plaintiff to be true and to indulge in all the reasonable inferences which may be drawn therefrom, Svalia v. Big Horn National Life Insurance Company, Wyo., 466 P.2d 1018, 1020. We shall, therefore, accept the statement of the issue and the rule enunciated by appellant.

The answer lies in the record, which is silent as to any notice to defendants of the vicious propensity of the dog. Appellant would have us make some inference from the fact that Crokers' dogs were known to have chased Cox's horses and snapped, barked, and nipped at them. He then suggests that Croker's remark that the dog was taking care of the premises, coupled with knowledge of the house incident, is some indication that the owners knew or should have known of the dog's vicious propensity. To satisfy the scienter requirement the knowledge of the owner must be of the particular propensity which caused the injury, Fowler v. Helck, 278 Ky. 361, 128 S.W.2d 564, 567; Matson v. Kivimaki, 294 Minn. 140, 200 N.W.2d 164, 169; Prosser, Torts, § 76, p. 501 (4th Ed.); and under the facts in this case the propensity involved would be the propensity of his viciousness towards...