Warwick v. Mulvey

• Decision Date: 10 April 1964
• Docket Number: No. 10105,10105
• Citation: 127 N.W.2d 433,80 S.D. 511
• Parties: Dorothy WARWICK, Plaintiff and Respondent, v. Marjorie MULVEY, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 433

127 N.W.2d 433

80 S.D. 511

Dorothy WARWICK, Plaintiff and Respondent, v. Marjorie MULVEY, Defendant and Appellant.

No. 10105.

Supreme Court of South Dakota.

April 10, 1964.

T. R. Johnson, Danforth, Danforth & Johnson, Sioux Falls, for defendant and appellant.

Gene E. Pruitt, Willy, Pruitt & Matthews, Sioux Falls, for plaintiff and respondent.

BIEGELMEIER, Presiding Judge.

This appeal involves two neighbors and the actions of Frosty, a dog, of which animal Lord Byron said was in life man's firmest friend, first to welcome, foremost to defend. Plaintiff's amended complaint charged defendant was the owner of a dangerous dog of a vicious and mischievous disposition, accustomed to jumping on and attacking persons, all of which was well known to defendant; that plaintiff was thrown to the ground and injured when it attacked her. There was a jury verdict for plaintiff and from a judgment thereon, defendant appeals.

The cases involving animals have announced settled principles of law. If a man have a beast that is ferae naturae, as a bear or wolf, and it get loose and do harm to any person, the owner is liable to an action for damages even though he had no notice the animal had done such thing before. The same principles apply to domitae naturae, or domestic animals, except as to them the owner must have seen or heard enough to convince a man of ordinary prudence of the animal's inclination to commit the class of injury charged against it. The law takes notice a dog is not of a fierce nature, but rather the contrary. Yet where proof is made of mischievous propensities which cause injury to another, of which the owner knew or should have known, liability follows. State v. McDermott, 1886, 49 N.J.L. 163, 6 A. 653; Knowles v. Mulder, 1889, 74 Mich. 202, 41 N.W. 896; Crowley v. Groonell, 1901, 73 Vt. 45, 50 A. 546, 55 L.R.A. 876 and see other authorities in Groner v. Hedrick, 1961, 403 Pa. 148, 169 A.2d 302 and Owen v. Hampson, 258 Ala. 228, 62 So.2d 245. The cause of action arises from the keeping of the animal after knowledge of its vicious propensity. Congress & Empire Spring Co. v. Edgar, 99 U.S. 645, 25 L.Ed. 487 cited in Anderson v. Anderson, 41 S.D. 32, 168 N.W. 852. A general review of this subject appears in 3 C.J.S. Animals Sec. 146, et seq.

Defendant claims insufficiency of the evidence to support the judgment and strenuously argues the evidence on her behalf indicates, as it does, the dog was playful and friendly. However, as the jury chose to believe plaintiff's version, the review of this court is limited to an examination of the record to see if there is competent evidence, viewed in light most favorable to her, which supports the verdict. Truxes v. Kenco Enterprises, Inc., S.D., 119 N.W.2d 914.

With these principles in mind we turn to defendant's claims that plaintiff's evidence does not support the charges of the dog's harmful propensities or her knowledge of them. The parties were next door neighbors and defendant caused a high fence to be erected around her backyard so as to keep her German shepherd dog confined. There was evidence it was a pet, but also that he was trained as a watchdog. The dog was about 3 ft. tall, weighed 85 1bs. and was kept in the basement or backyard, but when workmen were improving the basement he was kept away from them in the yard. On the day of the claimed injuries, plaintiff was walking in her own backyard when she heard a noise behind her and turned and saw the dog coming toward her. It ran up, attacked her, knocked her down on the ground and continued to pounce or her as she lay there screaming until it was called back to defendant's yard. When it attacked plaintiff it ran very fast toward her and was growing. The dog had been in the basement, but had come up through a doorway into the garage and out into the neighbor's yard. Defendant was then in the garage area, but said she did not notice the dog getting out.

There was evidence that prior to this occasion the dog attacked a milkman as he approached defendant's house by way of the driveway; it ran after him with its head down and making a gurgling sound. The man was afraid and ran back into his truck. The dog followed him up into the truck. The man jumped out on the other side of the truck and closed the door and as the dog got out on the opposite side and started to come around the truck the man jumped back into the truck and shut both doors. Defendant witnessed this and in the ensuing conversation with the milkman told him the worst thing he could have done was to run. He also testified the dog had a reputation for being a vicious dog. There was further testimony the dog had jumped up at plaintiff's husband, which while objected to, was not stricken from the record. This foregoing evidence was sufficient to present jury questions. See Norman v. Norman, 103 Ga.App. 626, 120 S.E.2d 42; Tucker v. Sclafani & Sons, Sup., 200 N.Y.S.2d 778; Shuffian v. Garfola, 9 A.D.2d 910, 195 N.Y.S.2d 45.

Before passing this subject defendant's brief contains some contention that in view of her evidence that Frosty was friendly and playful, plaintiff's injuries may have resulted from his propensity to playfully jump on a person. As to this contention courts have said 'A large, strong, and over-friendly dog may be as dangerous as a vicious on', Groner...