Sayers v. Haushalter
| Citation | 493 S.W.2d 406 |
| Decision Date | 30 January 1973 |
| Docket Number | No. 34380,34380 |
| Parties | Lori Ann SAYERS, a minor, by Diane Sayers, her next friend, et al., Plaintiffs-Respondents, v. Carl H. HAUSHALTER and Ruth Haushalter, Defendants-Appellants. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
F. X. Cleary, Daniel T. Rabbitt, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for defendants-appellants.
Glen C. Schomburg, St. Louis, for plaintiffs-respondents.
This is a dog bite case. A judgment in favor of respondent Lori Ann Sayers for $3000, and for her parents for $150 was entered in accordance with a jury verdict. Defendants appeal.
The incident giving rise to this litigation occurred at the home of Lori's paternal grandfather, who is the next door neighbor of defendants, the owners of the dog. The dog is an Alaskan Malemute of substantial size. On Memorial day the defendants and their dog were visiting in the grandparents' house at the express invitation of the grandfather. Lori, her sister and father entered the home for a visit while returning to their home from a family outing. Lori was three at the time. She went through the house and out onto a patio and called to the dog. He leapt at her and grabbed her head in his jaws causing a serious cut of her ear. Defendant Carl Haushalter, in close proximity, kicked the dog in the stomach and he released Lori.
Evidence was adduced that on a prior occasion the dog had bitten the ear of a neighbor child requiring four stitches. The only evidence adduced of this occurrence was that Mrs. Haushalter had put food down for the dog and left the house. The neighbor child, unknown to Mrs. Haushalter, had entered the premises either before or after Mrs. Haushalter's departure. Upon her return she discovered the child and the bite and was told by the child that the dog had bitten her. Mrs. Haushalter took the child to the hospital for suturing and the hospital card, signed by Mrs. Haushalter, showed the cause of injury as dog bite. Mr. Haushalter was aware of the previous bite.
At this point it is advisable to discuss defendants' initial point. They contend that there is no evidence to show that the prior bite was unprovoked and therefore there is no evidence of known vicious propensity of the dog, an essential element of this cause of action. We can concede that in the absence of the prior bite the evidence would be insufficient to show a known vicious propensity.
The essence of the common law action arising from a dog bite is that the owner, with actual or constructive knowledge of the vicious propensities of the animal, continues to harbor it. In determining vicious propensity it is not necessary that a prior bite be established, if other criteria of vicious propensity are established. On the other hand a prior bite does not per se establish vicious propensity, although it obviously has great probative value. The question is really one of burden of going forward with the evidence. Where the evidence clearly shows that the bite was the result of provocation or by its nature was not of a vicious nature then the prior bite is insufficient alone to establish vicious propensity. See Bush v. Anderson, Mo.App., 360 S.W.2d 251; Maxwell v. Fraze, Mo.App., 344 S.W.2d 262.
Plaintiff by establishing the prior serious bite has produced evidence upon which a jury could determine the dog had vicious propensities. If that bite was the product of provocation, or pain or some other cause which would negate viciousness it was the obligation of defendants to produce such evidence. We hold that there was sufficient evidence to support a finding of known vicious propensity.
Plaintiff submitted the case to the jury upon three theories--common law and two separate violations of a county ordinance--negligence per se. Defendants attack the ordinance submissions as unsupported by the evidence.
Since the introduction of Missouri Approved Instructions '. . . the jury should not be instructed on a theory of recovery or defense not supported by the evidence and . . . any such submission, whether in the conjunctive or disjunctive, should be reversible error.' M.A.I. Second Edition, p. 7.
The ordinance upon which plaintiffs submitted their case to the jury, was Ordinance No. 3283 of St. Louis County relating to rabies control.
The first of the verdict-directing ordinance instructions required the jury to return a verdict for plaintiffs if it found that prior to the bite of Lori the dog had attacked or bitten the neighbor child and that thereafter the defendants failed to confine the dog and post a notice as provided in the ordinance and that such conduct directly resulted in plaintiffs' injuries.
This was based upon a section of the ordinance that provided that when any dog had previously attacked or bitten any person or domestic animal, 'it shall be the duty of such owner to confine such dog on a chain, tether or leash, or confine to a yard completely enclosed by a fence . . . and to post a notice on the premises . . . reading . . . 'Bad Dog Here' or 'Beware--Bad Dog'.'
The second of the verdict-directing ordinance instructions directed the jury to return a verdict for plaintiffs if they found that defendants permitted the dog off their premises and not under restraint of a competent person and that as a result of such conduct Lori was injured.
This was based upon a section of the ordinance which provided that it was unlawful for the owner of any dog 'to permit or allow such dog to run at large on land which is non-rural in character.'
By definition a dog is 'at large when it is off the premises of its owner's real property and not restrained by a competent person.'
'Restraint' is defined (among other things) as 'When (the dog is) not more than fifty (50) feet from a competent...
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Frazier v. Stone, 9704
...of provocation or by its nature was not vicious, the prior bite is insufficient to establish vicious propensities. Sayers v. Haushalter, 493 S.W.2d 406 at 408 (Mo.App.1973) (citing authorities).3 According to the uncontradicted testimony of Mrs. Stone, when she testified for plaintiff, the ......
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Host v. BNSF Ry. Co.
...separately or disjunctively instructed, King, 873 S.W.2d at 278, both submissions must be supported by the evidence.Sayers v. Haushalter, 493 S.W.2d 406, 409 (Mo.App. 1973) (holding that where plaintiff submitted “case to the jury upon three theories—common law and two separate violations o......
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First Nat. Bank of Fort Smith v. Kansas City Southern Ry. Co.
...per se instruction, "there must in fact be a violation" of the statute upon which the instruction is based. Sayers v. Haushalter, 493 S.W.2d 406, 409 (Mo.App.1973). If no violation is shown, refusal of a negligence per se instruction is proper. See Monteer v. Prospectors Lounge, Inc., 821 S......
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Farrior v. Payton
...of Dogs), §§ 13-31.1, 13-31.2 (1969).10 See Young v, Honolulu Constr. and Draying Co. Ltd., 34 Haw. 426 (1933) and Sayers v. Haushalter, 493 S.W.2d 406 (Mo.App.1974).11 HRS § 622-13 (Supp.1975) reads: § 622-13 Proof of ordinances, rules, regulations, and other official acts. (a) Whenever, i......