McDonald v. Burgess
Decision Date | 01 July 1969 |
Docket Number | No. 354,354 |
Citation | 255 A.2d 299,254 Md. 452 |
Parties | Mark McDONALD et al. v. Coy R. BURGESS et ux. |
Court | Maryland Court of Appeals |
William L. Kaplan, Hyattsville (Karl G. Feissner, Thomas P. Smith and Feissner, Kaplan & Smith, Hyattsville, on the brief), for appellants.
Hugh L. Reilly, Hyattsville (Edward C. Bell, Hyattsville, on the brief), for appellees.
Before HAMMOND, C. J., and MARBURY, BARNESFINAN and SMITH, JJ.
This case arises from an unfortunate incident in which an eight year old boy lost part of an ear.
In July of 1967 plaintiffs-appellants, Mark McDonald ('the boy') and his mother, Mrs. Ann Drouillard ('the mother'), were visiting long time friends, defendants-appellees, Coy R. Burgess (Burgess) and his wife. Burgess owned two German shepherd dogs. When Burgess went to feed the dogs, the boy accompanied him to the 30 foot by 50 foot run where the dogs were kept. The boy was injured in the pen. This suit was brought alleging in a single count:
'That in addition thereto the Defendant(s) knew or should have known of the dangerous propensities of their dog and that they failed to take reasonable steps to prevent said animal from attacking and mauling the minor Plaintiff named herein.
Upon motion of the defendants, summary judgment was entered in their favor. We shall affirm that action.
The remedy of summary judgment pursuant to Maryland Rule 610a is proper only where there is no dispute as to a material fact and the moving party is entitled to judgment as a matter of law. Horst v. Kraft, 247 Md. 455, 458, 231 A.2d 674 (1967), and Owens v. Simon, 245 Md. 404, 407, 226 A.2d 548 (1967). As was said by Judge Niles for this Court in Tellez v. Canton Railroad Co., 212 Md. 423, 430, 129 A.2d 809, 813 (1957), Where different inferences may be drawn from undisputed facts, the party against whom the inferences are sought to be drawn is entitled to the inferences more favorable to his contentions. White v. Friel, 210 Md. 274, 285, 123 A.2d 303 (1956), and Roland v. Lloyd E. Mitchell, Inc., 221 Md. 11, 14, 155 A.2d 691 (1959).
The undisputed facts, other than previously stated, which may be gleaned from the record are: The precise cause of the boy's injury is not known. The boy said with reference to the dog 'Mike,' '(I)t seems like he did get up on my shoulder, but he didn't snap at me or anything.' The boy reiterated that the dog did not bite him, although he remembered that the dog's paws were up on his shoulders. The mother testified that she looked out of the side window in the Burgess kitchen. She saw the dog's paws on the boy's shoulders. The boy and the dog were close to the fence. She did not know whether the boy was against the fence. She saw the dog's paws, but did not see the dog. She did not see the dog pawing at the boy. She did not see the dog bite the boy. After this incident she said:
'Mark turned around to the window and he had a real funny look on his face, and I noticed something had happened, and I went running out of the house, and (Mrs. Burgess) was right behind me and Mark was coming out and, when he saw me, he started to run to meet me and he started crying then. I don't know how far away he was from me then. I can't remember, but I saw blood on him and I looked for something to wipe it with and there was his sweat shirt in the stoop that Mrs. Burgess gave me. I didn't know the blood was from his ear. I had no idea it was his ear, but there was a lot of blood and Randy said, 'Let's get him to a doctor."
Burgess was asked the question, 'When did the biting take place?', to which he replied:
They were about three or four feet outside of the gate before either Burgess or the boy noticed any blood on the boy and Burgess didn't know that any portion of the ear was missing until they were at the doctor's office. He stated unequivocally that the boy was not attacked by any dog. Thereafter, the record on deposition is as follows:
In response to defendant's interrogatories the mother conceded that she did not know of anyone's having been bitten by the animal in question prior to the incident in this case.
The Maryland rule of liability was stated by Judge (now Chief Judge) Hammond for this Court in Herbert v. Ziegler, 216 Md. 212, 139 A.2d 699 (1958):
The aforegoing was quoted verbatim in Finneran v. Wood, 249 Md. 643, 648, 241 A.2d 579 (1968). See also Hamilton v. Smith, 242 Md. 599, 219 A.2d 783 (1966).
It is an undisputed fact that Burgess did not know of any prior attacks by this dog or any demonstration of a vicious propensity. To this point the boy and his mother state that in Bachman v. Clark, 128 Md. 245, 97 A. 440 (1916), our predecessors allowed for injuries received by dog bite without any evidence that the dog had actually bitten people before , holding that evidence showing that the dog had growled at people prior to the incident '* * * was legally sufficient to go to the jury * * * to show that the dog had a propensity or inclination to bite mankind * * *', and calling our attention also to Goode v. Martin, 57 Md. 606 (1882). In Bachman v. Clark, supra, Judge Pattison for the Court said:
Id. 128 Md. at 248, 97 A. at 441.
On that premise, where there was evidence that the dog was always kept in an enclosure; that the dog would jump on people entering the enclosure; that the dog would become excited, bark and run up and down the fence, attempting to bite a stick thrust between the palings by boys upon the outside; that the dog would growl; and that the dog was always kept within the enclosure except when on a strap, our predecessors did hold there was legally sufficient evidence to go to the jury as tending to show ...
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