Teel v. Colson

• Citation: 396 A.2d 529
• Parties: Elizabeth A. TEEL and Donald R. Teel v. Ralph COLSON.
• Decision Date: 19 January 1979
• Court: Supreme Judicial Court of Maine (US)

Page 529

396 A.2d 529

Elizabeth A. TEEL and Donald R. Teel v. Ralph COLSON.

Supreme Judicial Court of Maine.

Jan. 19, 1979.

Grossman, Faber & Miller, P.A. by Barry M. Faber (orally), Rockland, for plaintiffs.

Richardson, Hildreth, Tyler & Troubh by Glenn R. Anderson (orally), Harrison L. Richardson, Ronald D. Russell, Portland, for defendant.

Before WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ., and DUFRESNE, A. R. J.

DUFRESNE, Active Retired Justice. ¹

In November 1975 Elizabeth Teel and her husband, Donald Teel, each filed a complaint in the Superior Court in the County of Knox against the defendant, Ralph Colson. In her complaint Mrs. Teel sought damages in the amount of $20,000.00 for the physical injury sustained by her when the defendant's allegedly vicious dog on July 5, 1975 bit her in the mouth and face, and also for the ensuing traumatic effect, so the document states, to her nervous system as well as for the consequential loss of income and incurrence of medical and hospital bills. In his separate complaint Mr. Teel sued to recover the sum of $5,000.00 as compensation for the medical and hospital expenses incurred, for the loss of his wife's earnings and for loss of consortium resulting from his wife's encounter with the defendant's dog. There is no allegation in either case that Mrs. Teel suffered a permanent injury. After consolidation for trial, both actions were tried in August 1976 before a jury. But, at the close of the evidence offered by the plaintiffs, the defendant moved for directed verdicts in each action. Rule 50, M.R.Civ.P. The Court granted the motions and judgments for the defendant were accordingly entered against the plaintiffs. We deny the plaintiffs' appeals from the unfavorable judgments.

We are mindful of the rule that, in testing the propriety of a directed verdict, the evidence must be viewed in the light most favorable to the party against whom the verdict is directed and that a verdict should not be ordered for the party defendant if any reasonable interpretation of the evidence viewed in that light, including every justifiable inference therefrom, would allow recovery by the party plaintiff. Supruniuk v. Petriw, Me., 334 A.2d 857 (1975); Cogswell v. Warren Brothers Road Co., Me., 229 A.2d 215 (1967).

Taken most favorably to the plaintiffs, the evidence warranted the following findings of fact. See Johnson v. Whitten, Me., 384 A.2d 698, 700 (1978).

On July 5, 1975 at about one o'clock in the afternoon Mrs. Teel was at work at the Rockport Mini-Mart in Rockport when Colson pulled up to the store's gas pump in an open-back pick-up truck. A large unmuzzled black dog was riding in the back of the truck. Mrs. Teel's duties, besides waiting upon customers in the store, included the servicing of motorists at the gas pump. Told by the defendant to "fill it up," Mrs. Teel went around to the pump and disengaged the nozzle and hose. As she bent over to unscrew the gas cap on the truck, the dog made a sudden lunge at her while growling and snapping, and succeeded in gripping her face from the bridge of her nose to the inside of her mouth under the front teeth in the gums. When the dog released its grip and backed away, Mrs. Teel was left with noticeable scratches and indentations made by the dog's teeth. She immediately advised the defendant that his dog had bitten her, but Colson retorted that she had "charged his dog" (emphasis provided) and refused to give his name. Mrs. Teel jotted down the license number of the truck as the defendant drove away, which led to the defendant's subsequent identification as the driver of the truck and the alleged owner of the dog.

Mrs. Teel continued to work that day, but in the evening she did go to the Knox County Hospital, where she was treated for the minor physical abrasions on her face and given a tetanus shot. She testified that, following the dog's attack, she has been afraid of animals and developed a chronic nervous condition causing menstrual problems for herself and marital difficulties in her marriage, to such an extent that in the fall of 1975 she filed for divorce. The complaint for divorce was not pursued, however, and the plaintiffs were still living together at the time of the trial of the instant actions in August, 1976.

Under Maine law, a person injured by dog bite has available to him for the recovery of his damages arising therefrom two distinct causes of action, one at common law and one under statute. The common law action is based on knowledge of the owner or custodian of the offending dog of the injurious propensity of the animal.

"By the common law the keepers of wild animals were unqualifiedly liable for all injuries done by such animals. No matter how carefully the keeper restrained and guarded his animals, his care did not exempt him, if they did damage. The owners or custodians of animals not wild (such as dogs) were liable for injuries done by them, if they knew of the injurious propensity of the animal. The most scrupulous care would not excuse them.

In actions for injuries caused by such animals, the plaintiff had only to prove the keeping and the scienter. " Hussey v. King, 83 Me. 568, 572, 22 A. 476, 477 (1891).

The statutory cause of action, on the other hand, in the case of damage caused by dogs, dispenses with the common law ingredient of knowledge of the animal's injurious propensity. Indeed, 7 M.R.S.A., § 3651 (1964) provides that

"(w)hen a dog does damage to a person or his property, his owner or keeper, and the parent, guardian, master or mistress of any minor who owns such dog, forfeits to the person injured the amount of the damage done, provided the said damage was not occasioned through the fault of the person injured, to be recovered by a civil action." ²

The distinction was elaborately explained in Hussey v. King, supra, 83 Me. 568 at page 575, 22 A. 476 at pages 478-479:

"Such being the common law, the statute now comes in, and, in the case of dogs, removes the need of alleging and proving even the scienter. It makes the owner or keeper of a dog prima facie absolutely liable for an injury done by the animal. It leaves him where the common law left the keeper of a wild animal, in the position of an insurer. It removes from the keeper of a dog the protection of want of notice, which the common law allowed. He now keeps a dog at his peril. If the dog does an injury, the injured party has an action both at common law, and under the statute. At common law, as said by Lord Denman, in May v. Burdett, the gist of the action was the keeping the animal after notice of his injurious propensities. Under the statute, the gist of the action is simply the keeping of the dog. The statute has made all else immaterial. An attack upon person or property by a dog is a trespass, for which the keeper of the dog must now answer as fully and unconditionally as for his own trespass." (Emphasis in original)

Thus, the common law limits recovery for damage caused by a dog to cases where the owner or keeper knew of the injurious propensity of the animal, and in those cases it allows a remedy to any person injured. The statute, on the other hand, is not concerned with the owner's or keeper's knowledge of the injurious propensity of the dog, but it limits the civil action it provides to the person injured only. This distinction was recognized in Begin v. Bernard, 160 Me. 233, 239, 202 A.2d 547, 550 (1964), where this Court held that a husband could not recover under the statute his consequential damages for medical expenses incurred and for loss of consortium resulting from the injury to his wife caused by the defendant's dog, because the statutory remedy is available only to the person sustaining the direct injury.

Both complaints in the instant case respectively allege as grounds for recovery of damages on account of the injury to Mrs. Teel by reason of her being bitten by Colson's dog "negligence of the defendant in carrying in the rear end of his pick-up truck a vicious animal who was not muzzled or in any way constrained." In their pretrial memorandum, adopted by the Court below, the plaintiffs stated the issues in the case to be

"negligence and degrees of negligence of the Defendant whereby the Plaintiff, Elizabeth A. Teel, was caused to suffer personal injuries as a result of an attack by the dog of the Defendant, and loss of consortium to Plaintiff, Donald R. Teel."

We have in mind that negligence of the defendant is immaterial either at common law or under the statute. Hussey v. King, supra. Also, the law of Maine at the time of the injury to Mrs. Teel did not permit recovery by Mr. Teel under the statute for the medical expenses incurred because of his wife's injury, nor for his loss of consortium, but it did recognize his right to recover for such injuries at common law upon proof that the owner or keeper of the dog had knowledge of the animal's injurious propensity. Begin v. Bernard, supra. The attorney for the plaintiffs never asserted, neither in his pleadings, nor directly to the Court, that he sought recovery under the statute. The defendant's attorney argued his motion for a directed verdict on the ground that the plaintiffs had introduced no evidence whatsoever to show that the defendant knew or had reason to know that his dog had a vicious propensity. The Court below in explicit and clear terms indicated to the plaintiffs' attorney he was granting the motion for a directed verdict, because at common law in order to recover on a suit in negligence for a dog bite the plaintiff must show that the defendant kept the animal after notice of its injurious propensities, and that there had been no change in the common law rule of negligence regarding dog bites. In response thereto, the plaintiffs' attorney did not then advance a right to recover under the statute, but rather indicated to the Court that he thought there was enough evidence in the case to successfully meet the motion for a directed...