Pharo v. Pearson

220 S.E.2d 359 (1975)

28 N.C. App. 171

Clarence PHARO, Individually and as guardian ad litem for Danny Pharo v. Stanley W. PEARSON and Faith S. Pearson.

No. 758SC639.

Court of Appeals of North Carolina.

December 17, 1975.

*360 Gerrans & Spence, P. A., by William D. Spence, Kinston, for plaintiffs-appellants.

Jeffress, Hodges, Morris & Rochelle, P. A., by A. H. Jeffress, Kinston, for defendants-appellees.

BRITT, Judge.

By their first assignment of error, plaintiffs contend the trial court erred in excluding testimony tending to show the vicious propensity of defendants' dog approximately four weeks subsequent to the date on which the minor plaintiff was bitten. The assignment has merit.

In the trial of this action, it was proper, if not necessary, for plaintiffs to show that defendants' dog was "dangerous, vicious, mischievous, or ferocious, or one termed in law as possessing a vicious propensity;. . . ." Swain v. Tillett, 269 N.C. 46, 51, 152 S.E.2d 297, 301 (1967), and cases therein cited. In addition to evidence as to what happened on the day the minor plaintiff was bitten, plaintiffs introduced evidence tending to show that defendants' dog growled and snarled at, and nearly attacked, one Connie Garner prior to 5 October 1971. Later, plaintiffs offered testimony by the minor plaintiff and his mother showing that approximately four weeks after he was bitten, and while he was on his parents' premises, defendants' dog again growled at him and tried to "jump him"; that the mother was present and chased the dog away with a broom. The court refused to admit the testimony.

In 4 Am.Jur.2d, Animals, § 125, p. 376, we find: "Where prior vicious habits or conduct of an animal have been shown, evidence of subsequent vicious conduct of the same nature is admissible." In 3A, C.J.S. Animals § 221, p. 725, we find: "In an action to recover damages for personal injuries or damage to animals arising from the conduct of domestic animals, the general rules as to competency and relevancy of evidence apply in determining the admissibility of evidence concerning the character of the animal causing the injury. Evidence of specific instances of viciousness . . . is admissible. Also, evidence of the disposition and temperament of the animal both before and after the occurrence in question is admissible. . . . [A]nd evidence that it subsequently manifested a similar disposition is competent to prove that its previous conduct was not accidental or unusual, but the result of a fixed habit, provided that such evidence is not too remote in point of time."

We hold that the court erred in excluding the testimony.

By their other assignment of error, plaintiffs contend the court erred in failing to charge the jury with respect to Section 4-6 of the Code of Ordinances of the City of Kinston. We think the assignment has merit.

G.S. 1A-1, Rule 51(a), clearly imposes on the trial judge the duty to "declare and explain the law arising on the evidence given in the case". The ordinance in question provides as follows:

"It shall be unlawful for any dogs to be running at large without a muzzle on the streets or sidewalks of the City of Kinston, unless under the control of the owner, a member of his immediate family, or his authorized agent, either by leash, collar, chain, or otherwise."

*361 In their complaint, plaintiffs pled the violation of the ordinance as one of the grounds of negligence and at trial introduced the ordinance into evidence and offered testimony tending to show its violation by defendants.

G.S. 14-4 makes the violation of a municipal ordinance a misdemeanor. In Bell v. Page, 271 N.C. 396, 399, 156 S.E.2d 711, 715 (1967), we find: "The violation of a municipal ordinance imposing a public duty and designed for the protection of life and limb is negligence per se". But defendants argue that the subject matter of the ordinance in question has been preempted by a statewide statute, therefore, the ordinance has no validity.

G.S. 106-381 provides: "When an animal becomes vicious or a menace to the public health, the owner of such animal or person harboring such animal shall not permit such animal to leave the premises on which kept unless on leash in the care of a responsible person."

G.S. 160A-174(a) authorizes a city to enact ordinances to ". . . define, prohibit, regulate, or abate acts, omissions, or conditions, detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the city . . . ." G.S. 160A-174(b) requires that ordinances be consistent with the constitutions and laws of the State and nation and sets forth certain instances in which an ordinance would not be consistent with State or federal law. The section concludes with the following sentence: "The fact that a State or federal law, standing alone, makes a given act, omission, or condition unlawful shall not preclude city ordinances requiring a higher standard of conduct or condition." See State v. Tenore, 280 N.C. 238, 247, 185 S.E.2d 644, 650 (1972).

We hold that the ordinance in question is not inconsistent with G.S. 106-381. The statute is designed to provide minimum protection against vicious dogs in all parts of the Staterural, urban, small villages and large cities. It stands to reason that with more concentrated population, cities are justified in adopting stricter regulations for dogs. The City of Kinston is authorized to require "a higher standard of conduct or condition" with respect to the keeping of dogs within its corporate limits than is required by G.S. 106-381 for the State generally.

By alleging the ordinance, introducing it in evidence, and presenting testimony tending to show its violation by defendants, plaintiffs made the ordinance a substantial feature of the case, thereby imposing on the trial judge a positive duty to give appropriate jury instructions with respect to the ordinance.

For the reasons stated, we order a new trial on all issues.

New trial.

VAUGHN and ARNOLD, JJ., concur.