Sink v. Moore, 440

• Decision Date: 25 May 1966
• Docket Number: No. 440,440
• Citation: 148 S.E.2d 265,267 N.C. 344
• Court: North Carolina Supreme Court
• Parties: Larry Eugene SINK, By His Next Friend, Edwin T. Pullen, III, v. William MOORE, James D. Felton and wife, Katie H. Felton. Louise A. HALL v. William MOORE, James D. Felton and wife, Katie H. Felton.

Page 265

148 S.E.2d 265

267 N.C. 344

Larry Eugene SINK, By His Next Friend, Edwin T. Pullen, III, v. William MOORE, James D. Felton and wife, Katie H. Felton.

Louise A. HALL v. William MOORE, James D. Felton and wife, Katie H. Felton.

No. 440.

Supreme Court of North Carolina.

May 25, 1966.

Deal, Hutchins & Minor, Winston-Salem, for plaintiff appellants.

Womble, Carlyle, Sandridge & Rice, by Irving E. Carlyle and Allan R. Gitter, Winston-Salem, for defendant appellee William Moore.

Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, by R. M. Stockton, Jr., and J. Robert Elster, Winston-Salem, for defendant appellees James D. Felton and wife, Katie H. Felton.

LAKE, Justice.

The scene of this occurrence was in a residential area outside the limits of the city of Winston-Salem. Consequently, no city ordinance requiring dogs to be kept under restraint is involved. G.S. § 106--381 provides that '(w)hen an animal becames vicious or a menace to the public health,' its owner may not permit the animal to leave the premises on which it is kept unless it is on a leash and in the care of a responsible person.

There is in this record no evidence that the little dog, Corky, was either vicious or a menace to the public health. On the contrary, the evidence is that he had never been known to snap at or bite a child or any other person. He stayed 'pretty close' to the two small Felton boys. He was 'just a little mutt' about a foot high. There was testimony that, on occasion, he fought with other dogs in the neighborhood, apparently with success. Had the witness Stancil been permitted to testify as to Corky's reputation in the community, he would have said that he saw Corky, on several occasions, fighting with his dog and other neighborhood dogs, and that on these occasions, when Mr. Stancil went out to break up the fight, Corky would tend to stand his ground and growl while the other dogs would spread out. Canine courage in a contest for the championship of the neighborhood, together with determination to remain in possession of the field of battle 'whence all but him had fled,' is not evidence of a vicious character within the meaning of this statute. There is no evidence that Corky ever indicated an intent to attack Mr. Stancil.

The only other charge of misconduct brought against Corky, prior to the occasion in question, is that he frequently dashed into the street to bark at and pursue motorcycles, automobiles and other noisy vehicles. Such a habit is not sufficient to justify classifying him as a 'vicious' animal. It does not make him 'a menace to the public health,' though it considerably reduces his own life expectancy. In State v. Smith, 156 N.C. 628, 72 S.E. 321, 36 L.R.A., N.S., 910, Walker, J., said, 'A dog is like a man in one respect, at least--that is, he will do wrong sometimes; but, if the wrong is slight or trivial, he does not thereby forfeit his life.' Earlier, Gaston, J. said, in Dodson v. Mock, 20 N.C. 282:

'That the plaintiff's dog on one occasion stole an egg, and afterwards snapped at the heel of the man who had hotly pursued him Flagrant delicto--that on another occasion he barked at the Doctor's horse, and that he was shrewdly suspected in early life to have worried a sheep--make up a very catalogue of offenses not very numerous nor of a very heinous character. If such deflections as these from strict propriety be sufficient to give a dog a bad name and kill him, the entire race of these faithful and useful animals might be rightfully extirpated.'

Since G.S. § 106--381 does not apply and there is no city ordinance involved, the liability, if any, of the defendants Felton must be determined by the rule of the common law applicable to the owner or keeper of a dog. At common law the presence of a dog, not vicious, on a street or highway is not wrongful. 4 Am.Jur.2d, Animals, § 115. In Plumidies v. Smith, 222 N.C. 326, 22 S.E.2d 713, the plaintiff was a 12 year old boy who, while delivering newspapers, was bitten by the defendant's large Saint Bernard dog. Stacy, C.J., speaking for the Court, said:

'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.'

In Hill v. Moseley, 220 N.C. 485, 17 S.E.2d 676, the suit was brought for injuries sustained by a boy attacked by the defendant's vicious bull. Seawell, J., speaking for the Court, said:

'The evidence of vicious propensity must be unequivocal. But we are not required to explore the psychology of the bull, if he has any, to determine whether his intentions are amiable or malicious. The propensity is vicious if it tends to harm, whether manifestly in play or in anger, or in some outbreak of untrained nature which, from want of better understanding, must remain unclassified.'

The word 'mischievous' as used in this rule of the common law does not connote a mere playful canine trickster. It connotes conduct 'producing or tending to produce mischief or harm; injurious; deleterious; hurtful.' The Century Dictionary; Webster's New International Dictionary, Second Edition. See State v Smith, supra; Spring Co. v. Edgar, 99 U.S. 645, 653, 25 L.Ed. 487. On the other hand, if the habit of the dog is one which is likely to cause injury, it is immaterial that the dog was playing. Thus, where a large dog jumped up on an old man walking along a highway and knocked him to the ground, the owner, knowing of the dog's disposition to such conduct, was held liable in Crowley v. Groonell, 73 Vt. 45, 50 A. 546, 55 L.R.A. 876. Similarly, in the days of horse drawn vehicles, there was obvious danger that a dog running about the horse, barking ferociously and snapping and biting at the horse's legs, might cause the horse to run away and injure the occupants of the vehicle. See: Harris v. Fisher, 115 N.C. 318, 20 S.E. 461; Schmid v. Humphrey, 48 Iowa 652; Broderick v. Higginson, 169 Mass. 482, 48 N.E. 269; Knowles v. Mulder, 74 Mich. 202, 41 N.W. 896; 4 Am.Jur.2d, Animals, § 115; Annot., 11 A.L.R. 270.

The test of the liability of the owner of the dog is, therefore, not the motive of the dog but whether the owner should know from the dog's past conduct that he is likely, if not restrained, to do an act from which a reasonable person, in the position of the owner, could foresee that an injury to the person or property of another would be likely to result. That is, the liability of the owner depends upon his negligence in failing to confine or restrain the dog. The size, nature and habits of the dog, known to the owner, are all circumstances to be taken into account in determining whether the owner was negligent.

There is no evidence that either Mr. or Mrs. Felton saw the dog run out after Larry's bicycle. There is no evidence that the dog came in contact with the bicycle or with Larry. There is no evidence that he bit or snapped at Larry or at the bicycle, or attempted to do so. There is no evidence that Larry, who lived in the neighborhood, was afraid of this dog. The evidence is that prior to this accident he was a...