Miller v. Snipes, 7121SC517

• Decision Date: 15 September 1971
• Docket Number: No. 7121SC517,7121SC517
• Citation: 183 S.E.2d 270,12 N.C.App. 342
• Court: North Carolina Court of Appeals
• Parties: Jill Ann MILLER, by her Guardian ad litem Frank J. Yeager v. Robert SNIPES and wife, Ann Snipes.

Page 270

183 S.E.2d 270

12 N.C.App. 342

Jill Ann MILLER, by her Guardian ad litem Frank J. Yeager v. Robert SNIPES and wife, Ann Snipes.

No. 7121SC517.

Court of Appeals of North Carolina.

Sept. 15, 1971 Certiorari Denied by Supreme Court Nov. 9, 1971.

Nelson & Clayton, by George E. Clayton, Jr., Winston-Salem, for plaintiff appellant.

Deal, Hutchins & Minor, by William Kearns Davis, Winston-Salem, for defendant appellees.

GRAHAM, Judge.

To recover for injuries inflicted by a domestic animal, a plaintiff must allege and prove: (1) That the animal was dangerous, vicious, mischievous, or ferocious, or one termed in law as possessing a vicious propensity; and (2) that the owner or keeper knew or should have known of the animal's vicious propensity, character, and habits. Swain v. Tillett, 269 N.C. 46, 152 S.E.2d 297; Sellers v. Morris, 233 N.C. 560, 64 S.E.2d 662; Patterson v. Reid, 10 N.C.App. 22, 178 S.E.2d 1.

In support of their motion for summary judgment defendants offered evidence tending to show that before the incident complained of they considered the pony gentle in nature. He appeared nervous only when children would make loud noises around him. Defendants had never known the pony to kick, buck, rear up when being ridden, or throw anyone. The only complaint received from neighborhood children who rode the pony from time to time was with respect to 'nuzzling', which Mr. Snipes described as '(m)ore or less of a pinch, I would say; never breaking the skin or bruising that I know of.' On three occasions before the pony was gelded he broke through the fence and went to a mare in an adjoining pasture. After he was gelded, more than a year before the incident complained of, the pony did not break through the fence. There were occasions when the pony was difficult to harness and when it would not respond to commands. The pony had been ridden by defendants' eleven-year old son, and occasionally by their seven-year old son without incident. Defendants had thought it better to bring the pony from its pasture to the yard before permitting the children to ride, because the minor plaintiff and her mother had never 'worked around a pony or had a pony.'

Plaintiff presented affidavits tending to show that the pony was not well trained or broken; that it was frisky and unpredictable; that it had been known to bite others; that on several occasions it had broken through its pasture fence in order to get to mares; and that on several occasions, the pony had thrown its rider.

The affidavits offered by plaintiff leave much to be desired with respect to clarity and specificity. However, in ruling on a motion for summary judgment, the papers supporting the movant's position are to be closely scrutinized, while the opposing papers are to be indulgently treated. Underwater Storage, Inc. v. United States Rubber Co., 125 U.S.App.D.C. 297, 371 F.2d 950 (1966); 6 Moore's Federal Practice, § 56.15(3). Also, the party moving for summary judgment has the burden of positively and clearly showing that there is no genuine issue as to any material fact and any doubt as to whether such an issue exists must be resolved in the favor of the party opposing the motion. National Screen Service Corp. v. Poster Exchange, Inc., 305 F.2d 647 (5th Cir. 1962). 'A litigant has a right to a trial where there is the slightest doubt as to the facts, and a denial of that right is reviewable * * *.' Doehler Metal Furniture Co., Inc. v. United States, 149 F.2d 130 (2d Cir. 1945).

In light of plaintiff's showing that she is prepared to offer evidence that the pony had bitten people, thrown riders, broken through its pasture fence several times; and that it was unpredictable and not well trained, we are unable to conclude beyond doubt that no question exists as to whether the animal was in fact dangerous or mischievous as those terms are used in the law governing the ownership or keeping of domestic animals. Nor do we think that it has been sufficiently shown that no question exists as to whether defendants had knowledge of the animal's propensities. It is true that defendants deny any knowledge that the pony engaged in the acts described in plaintiff's affidavits. Also, there is no evidence to show that defendants were ever told of these acts or that they were present when any of the acts occurred. However, it is not mandatory that a plaintiff present evidence that the owner or keeper of a domestic animal had actual knowledge of the animal's vicious propensities. It is sufficient if it is shown that the owner Should have known of such propensities. Swain v. Tillett, Supra.

In applying a doctrine with respect to domestic animals similar to the doctrine prevailing in North Carolina, the West Virginia Supreme Court stated:

'While the doctrine * * * is that notice or knowledge of the vicious propensities of an animal is an essential prerequisite in order to charge the owner, yet the true doctrine is that knowledge need not necessarily be actual, in the ordinary acceptation of the term. Either constructive or imputed notice is sufficient. If in the exercise of reasonable diligence and common prudence the owner ought to have known an animal owned or kept by him was dangerously inclined and likely would, if unrestrained, inflict injury upon the person or property of another, he is chargeable as if he had actual, direct, and positive notice of acts of viciousness committed by it.' Butts v. Houston, 76 W.Va. 604, 86 S.E. 473.

If the plaintiff here can show at the trial that the pony repeatedly...