Sellers v. Morris

64 S.E.2d 662 (1951)

233 N.C. 560

SELLERS v. MORRIS et al.

No. 534.

Supreme Court of North Carolina.

May 2, 1951.

*663 Helms & Mulliss and James B. McMillan, Charlotte, for defendants-appellants.

No counsel contra.

BARNHILL, Justice.

"If an ox gore a man or a woman, that they die: then the ox shall be surely stoned * * * but the owner of the ox shall be quit. But if the ox were wont to push with his horn in time past, and it hath been testified to his owner, and he hath not kept him in, but that he hath killed a man or a woman * * * his owner also shall be put to death." 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.W.2d 534.

The demurrer was well advised. The judgment overruling the same must be

Reversed