Plumidies v. Smith, 527.
Decision Date | 25 November 1942 |
Docket Number | No. 527.,527. |
Citation | 222 N.C. 326,22 S.E.2d 713 |
Parties | PLUMIDIES. v. SMITH. |
Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklenburg County; Hubert E. Olive, Special Judge.
Action by Mike Plumidies against E. J. Smith for injuries inflicted on plaintiff by defendant's dog. From a judgment of nonsuit, the plaintiff appeals.
Reversed.
The complaint alleges that on the afternoon of June 13, 1940, the plaintiff, a boy twelve years of age, was delivering papers in the City of Charlotte, near the defendant's home; that the defendant kept, harbored and allowed to run at large a Saint Bernard dog, which attacked and bit the plaintiff and seriously injured him; that the dog was mischievous, possessing a vicious propensity, and that this was known to the defendant.
Plaintiff testified: .
W. J. Wentz testified: .
John Plumidies, plaintiff's brother, testified:
There was contradictory evidence on behalf of the defendant in respect of the character and habits of the dog, and a denial of any knowledge of its vicious propensity.
From judgment of nonsuit entered at the close of all the evidence, the plaintiff appeals, assigning errors.
Henry L. Strickland, of Charlotte, for plaintiff-appellant.
McDougle & Ervin, of Charlotte, for defendant-appellee.
The principles here applicable are well settled. First. To recover for injuries inflicted by a domestic animal, in an action like the present, two essential facts must be shown: (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. Hill v. Moseley, 220 N.C. 485, 17...
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... ... 190, 7 ... S.E.2d 359; Queen City Coach Co. v. Lee, 218 N.C ... 320, 11 S.E.2d 341; Plumidies v. Smith, 222 N.C ... 326, 22 S.E.2d 713. In this connection it may be said that it ... is ... ...
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...vicious propensity, character, and habits." (Emphasis added.) Sellers v. Morris, 233 N.C. 560, 561, 64 S.E.2d 662, 663; Plumidies v. Smith, 222 N.C. 326, 22 S.E.2d 713; Hill v. Moseley, 220 N.C. 485, 17 S.E.2d 676. See also Sink v. Moore and Hall v. Moore, 267 N.C. 344, 148 S.E.2d 265. "The......
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...vicious propensity, character, and habits.' (Emphasis added.) Sellers v. Morris, 233 N.C. 560, 561, 64 S.E.2d 662, 663; Plumidies v. Smith, 222 N.C. 326, 22 S.E.2d 713; Hill v. Moseley, 220 N.C. 485, 17 S.E.2d 676. See also Sink v. Moore and Hall v. Moore, 267 N.C. 344, 148 S.E.2d 265. 'The......