Merritt v. Matchett
| Decision Date | 01 February 1909 |
| Citation | 115 S.W. 1066,135 Mo.App. 176 |
| Parties | IDA M. MERRITT, Appellant, v. W. R. MATCHETT, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Chesley A. Mosman, Judge.
REVERSED AND REMANDED (with directions).
Reversed and remanded.
W. K Amick for appellant.
(1) The court sustained the motion for new trial on the sole ground that error was committed in giving plaintiff's instruction number four. There is no error in this instruction. It correctly states the law. Dickson v McCoy, 39 N.Y. 400; Brown v. Green, 42 A. 991. (2) By a vicious propensity, is included a propensity to do any act that might endanger the safety and property of others in a given situation. Dickson v. McCoy, 39 N.Y. 403; Brown v. Green, 42 A. 993.
Oscar D. McDaniel for respondent.
(1) The burden of showing error in granting a new trial is on the party appealing from the order granting it. Hewitt v Steel, 118 Mo. 463; Tapana v. Shaffray, 97 Mo.App. 337. (2) One who owns or keeps an animal of any kind becomes liable for any injuries that it may do only on the ground of some actual or presumed negligence. Staetter v. McArthur, 33 Mo.App. 221; Earl v. Van Alstine, 8 Barb. 630; Godeau v. Blood, 52 Vt. 254; Reynolds v. Hussey, 64 N.H. 64; Keighlinger v. Egan, 65 Ill. 235. (3) He must not wait until the dog bites somebody before taking notice of the dog's conduct, where it has been such as to warn the man of ordinary prudence that the dog is ferocious or vicious in disposition. O'Niel v. Blase, 94 Mo.App. 667; Rider v. White, 65 N.Y. 54; Mann v. Weiland, 81 1-2 Pa. St. 243; Robinson v. Marino, 3 Wash. 434; Kennett v. Engle, 105 Mich. 693. (4) The owner is not liable for permitting his domestic animal to run at large when he has no reason to apprehend that any injury will result therefrom. Dickson v. McCoy, 39 N.Y. 403; Kries v. Railway, 130 Mo. 533. (5) The court erred in refusing defendant's instruction "A" because there was no proof that the dog had a vicious propensity and no proof of scienter. Friedman v. McGowan, 42 A. 723; Brown v. Green, 42 A. 991; Twigg v. Ryland, 62 Md. 380; Corliss v. Smith, 53 Vt. 532; Reynolds v. Hussey, 64 N.H. 64; Bell v. Leslie, 24 Mo.App. 668.
Plaintiff, a married woman, was attacked and injured by a large dog, which she claims was owned or harbored by defendant, and brought this suit to recover the damages sustained. She alleges that the animal "was of a mischievous and vicious propensity and was in the habit of attacking persons and other animals without cause or provocation," and that defendant had knowledge of such propensity. The answer is a general denial and a plea of contributory negligence.
The verdict of the jury was for plaintiff in the sum of $ 1,500 but it was set aside on the hearing of the motion for a new trial on the ground of "error in plaintiff's fourth instruction." Plaintiff appealed and argues that the instructions correctly declare the law of the case. Defendant contends, first, that the case should not have been submitted to the jury and, second, that the court was right in granting a new trial on the ground stated in the order.
Defendant conducted a grocery store in St. Joseph. The evidence of plaintiff is to the effect that he owned the store while defendant testified that his wife was the owner and employed him as manager of the business. Before the injury, defendant had harbored a large brindle dog at the store. It is a fair inference from some of the evidence that defendant owned the dog, but he and his witnesses say that the animal was the property of a young man employed by defendant as the driver of a delivery wagon. Generally, the dog stayed in the store at night, and in the daytime was in the habit of following the delivery wagon. There is evidence in the record that tends to convict him of possessing a vicious or, at least, a mischievous disposition. Not only was he prone to attack dogs and other domestic animals without provocation, but on some of his excursions with the delivery wagon, he rushed at people as though he intended to do them bodily harm. There is no proof that he ever bit a person, but he is depicted in the evidence of plaintiff as being a canine bully that delighted in terrifying people and animals with ferocious demonstrations.
On August 10, 1907, plaintiff, then in a pregnant condition, was sitting on the front porch of her residence when the delivery wagon passed along the street. The dog was following the wagon and when opposite the premises of plaintiff, suddenly and without provocation, charged at her. He jumped the front fence, rushed up on the porch and jumped at plaintiff in a ferocious and terrifying manner. Plaintiff, greatly excited, managed to push him away with her arms. He fell, striking his breast on the edge of the porch, got up, ran over to an adjoining house, snapped at a woman standing on the porch of that house and then suddenly turned and ran after the wagon. Plaintiff was so shocked by terror that she fell ill, suffered a miscarriage and, at the time of the trial, had not recovered fully from the evil effects of the attack.
The above statement of facts is collected from the evidence of plaintiff and is contradicted by the testimony of defendant and his witnesses. They describe the dog as being possessed of a peaceable disposition and say that he never assailed human beings or domestic animals in any way without provocation. The driver of the wagon, who claimed to be the owner of the animal, testified that a dog owned by plaintiff's neighbor attacked his dog in the street. In the course of the fight that ensued, the brindle dog prevailed and chased the other into the latter's yard, where the fight was resumed. At this juncture, the woman who owned the defeated dog appeared with a gun and shot at the brindle dog. Of course she did not hit him, but she did scare him away, and he ran across plaintiff's front yard to overtake the wagon, without even noticing plaintiff. Among the instructions given at the request of plaintiff, are the following:
(1). "If the jury believe from the evidence that prior to the 15th day of August, 1907, that defendant either owned, kept or harbored a dog of vicious propensities that was diposed to bite or attack or injure a person, and if you believe that the defendant knew, or by the exercise of ordinary care could have known, of the vicious propensity of such dog, prior to August, 1907, and if you believe that the defendant did own, keep or harbor such a dog, and that on or about the 15th day of August, 1907, the dog so owned, kept or harbored by the defendant without provocation, did attack the plaintiff upon her own premises, and if you believe at said time plaintiff was in a pregnant condition, and if you believe that said dog in attacking the plaintiff, so alarmed and frightened her that a miscarriage was thereby prematurely brought on and that plaintiff was thereby injured and damaged and lost her child, then the jury should find their verdict for the plaintiff."
(2). "The jury are instructed that in order to find for the plaintiff under plaintiff's instruction number 1, it is not necessary for the jury to believe that defendant was the actual owner of the dog in question, but if the jury believe from the evidence that defendant knowingly kept or harbored or permitted his servant to keep or harbor the dog about his premises as a watch dog, in his store and knowingly permitted the dog to go with his team and servant and be in charge of said servant while delivering goods in the conduct of his business, then it makes no difference in this case whether the defendant was the owner of the dog or not."
(4). "The jury are instructed that what is meant by the term 'a vicious propensity' in an animal, is such a propensity that the dog might attack or injure the safety of persons without being provoked so to do."
First we shall dispose of the questions presented by defendant's demurrer to the evidence. Applying the rule that requires courts in deciding questions of law thus raised to adopt as proved the version of the facts most favorable to the cause of action pleaded, we shall assume that for a long time before the injury, defendant had harbored the dog at his store and had sanctioned the...
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