Rucker v. Goldstein
Decision Date | 31 October 1986 |
Citation | 497 So.2d 491 |
Parties | Neva RUCKER a/k/a Mrs. Lewis Rucker v. Fred GOLDSTEIN. 85-615. |
Court | Alabama Supreme Court |
Stephen D. Heninger of Hare, Wynn, Newell & Newton, Birmingham, for appellant.
John B. Tally, Jr., and Barbara F. Olschner of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
The single issue presented on this appeal is whether the trial court erred in granting the defendant's motion for judgment notwithstanding the verdict, after a jury verdict for the plaintiff in a dogbite case.
On January 18, 1980, appellant Neva Rucker was attacked and injured by a dog while picking up the afternoon paper from her yard. According to appellant, the attack lasted for approximately five minutes, during which time the dog pulled off her shoe and bit her foot. When appellant got free from the dog, she crawled into the house and called a doctor.
Mrs. Rucker contends that at the time of the attack, the dog, a red Irish setter, belonged to appellee Fred Goldstein. She claims that she identified the dog in question when it returned to her yard several weeks after the attack. At that time, a friend was able to get appellee's name from a tag on the dog's collar.
It is undisputed that Loraine Bowen, a neighbor of Mrs. Rucker, had called the owner of the dog on at least two occasions before the attack on Mrs. Rucker to complain about the dog. Bowen testified that she had seen appellee's dog chasing garbage men and running and barking at people; however, she admitted that she had never seen the dog display vicious tendencies. In her words, "He was just rambunctious." Bowen stated repeatedly at trial that she did not tell appellee of the dog's specific acts; rather, she only told him that the dog was a nuisance.
Because Bowen's testimony is the only evidence adduced at trial that might impute knowledge of the dog's vicious tendencies to the appellee, pertinent portions of her testimony are set out, as follows:
'Q. All right. But I believe you said just a moment ago when you were talking to Mrs. Rucker's lawyer, you did not tell Mr. Goldstein that the dog had--was barking at people or jumping up on people; is that correct?
Mr. Goldstein described his dog as a very gentle dog, the kind of dog that would let other dogs eat out of his bowl, one that would not bite if someone put a hand in his mouth. He said that when a stranger would come into the house, the dog would lie on his back with all four paws in the air.
Goldstein testified that he received friendly calls about his dog. He said that the dog would jog with three women that lived in the neighborhood, and that they would feed him and take him into their house. When questioned as to whether the women who jogged with the dog ever called to complain, the appellee responded:
In Owen v. Hampson, 258 Ala. 228, 62 So.2d 245 (1952), this Court held that the common law rule of negligence is still applicable to dogbite cases in Alabama. The early case of Durden v. Barnett & Harris, 7 Ala. 169, 170 (1844), set out the rule as follows:
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