Sellers v. Morris
| Decision Date | 02 May 1951 |
| Docket Number | No. 534,534 |
| Citation | 233 N.C. 560,64 S.E.2d 662 |
| Parties | SELLERS, v. MORRIS et al. |
| Court | North Carolina Supreme Court |
Helms & Mulliss and James B. McMillan, Charlotte, for defendants-appellants.
No counsel contra.
Exodus 21: 28, 29.
The philosophy of liability of an owner for damages inflicted by a domestic animal underlying this law of Moses is so sound and just in principle that it has survived the ages.
To entitle plaintiff to recover for injuries, he 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. Plumidies v. Smith, 222 N.C. 326, 22 S.E.2d 713, and cases cited; Hobson v. Holt, 233 N.C. 81, 62 S.E.2d 524. Such allegations are not contained in plaintiff's complaint. For that reason it is fatally defective.
Plaintiff does make allegations respecting the limited area and the congested conditions due to overcrowding, his inability, by reason thereof, to move out of the way, want of notice, and the like. But these allegations are not sufficient to state a cause of action. They are pertinent only as they relate to the one basis of liability, if any,--the injuries inflicted by the mule.
The plaintiff had eyes to see and he was as aware of the conditions about which he complains as anyone else at the sale. Yet he was in the vanguard of the crowd. Pridgen v. S. H. Kress & Co., 213 N.C. 541, 196 S.E. 821; McComas v. Sanders, 153 Kan. 253, 109 P.2d 482; Alexander v. Crotchett, 233 Mo.App. 674, 124 S.E.2d 534.
The demurrer was well advised. The judgment overruling the same must be
Reversed
To continue reading
Request your trial
-
Holcomb v. Colonial Associates, LLC
...have known of the animal's vicious propensity, character, and habits.'" Id. at 51, 152 S.E.2d at 301 (quoting Sellers v. Morris, 233 N.C. 560, 561, 64 S.E.2d 662, 663 (1951)) (alterations in original). However, plaintiff did not allege in his complaint that defendant Colonial was strictly l......
-
Thomas v. Weddle
...have known of the animal's vicious propensity, character, and habits.' "Id. at 494, 572 S.E.2d at 218 (quoting Sellers v. Morris, 233 N.C. 560, 561, 64 S.E.2d 662, 663 (1951)). The Court noted that even "[i]f the plaintiff establishes that an animal is in fact vicious, the plaintiff must th......
-
Swain v. Tillett
...or Keeper knew or should have known of the animal's 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 a......
-
Holcomb v. Colonial Associates, LLC
...have known of the animal's vicious propensity, character, and habits." Id. at 628-29, 561 S.E.2d at 536 (quoting Sellers v. Morris, 233 N.C. 560, 561, 64 S.E.2d 662, 663 (1951)). The "[p]laintiff's complaint and supporting affidavits contain[ed] no allegations whatsoever to support any conn......