Sink v. Moore

148 S.E.2d 265 (1966)

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.

*268 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 *269 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 leastthat 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 delictothat 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. *270 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 normal boy nearly 15 years of age. It may not reasonably be inferred from the plaintiff's evidence that Larry was frightened or contemplated an attack. The evidence is equally consistent with the view that Larry was playing and enjoying the race. In this respect, the case differs from Ethridge v. Nicholson, 80 Ga.App. 693, 57 S.E.2d 231. There, the plaintiff, a girl whose age does not appear from the report, alleged in her complaint that she was, while riding her bicycle, attacked by the defendant's "large, vicious German police dog," that the dog was barking and indicating his intention to attack, bite and injure her and she, believing he would do so, gave her sole attention to him and ran into an obstruction in the street. The question arose on a demurrer to the complaint so that these allegations were taken to be true. Furthermore, there was, in that case, an ordinance in effect forbidding owners of dogs to allow them to run at large in the streets. The overruling of the demurrer by the Georgia Court is not authority for the proposition that, upon the facts in the present case, the owners of this small dog should be held liable.

Considering the size of the dog and his established lack of viciousness, we think his propensity for chasing automobiles and other noisy vehicles was not sufficient to cause a reasonable owner to apprehend injury to another unless the dog was confined to a pen or restrained by a leash.

Upon a motion for judgment of nonsuit, the evidence must be taken in the light most favorable to the plaintiff and every reasonable inference of fact favorable to him must be drawn therefrom. Raper v. McCrory-McLellan Corp., 259 N.C. 199, 130 S.E.2d 281. However, when so considered, the evidence in this case is not sufficient to support a finding of a "vicious propensity" on the part of the dog.

There was no error in sustaining the objection to the proposed testimony by the witness Stancil that Corky had a *271 bad reputation "as an ill-tempered dog." In an action of this nature the reputation of the animal is admissible as evidence that the owner knew of its disposition and propensities. Hill v. Moseley, supra; Stansbury, North Carolina Evidence, § 109. However, the proper foundation was not laid for the question as to the dog's reputation. The witness was not asked whether he knew that reputation. The record shows that if he had been so asked he would have stated that his testimony was based entirely upon his own observation of the dog's actions and not upon what anyone else said. This witness, as others, could properly testify as to what he had seen the dog do, but this is not evidence of the dog's reputation in the community. It is evidence of the dog's habits, disposition and character. Had the proposed testimony been received in evidence, it would simply have shown that the dog, in this witness' opinion, was ill-tempered because he fought with other dogs in the neighborhood. The witness would have testified that he had never heard of Corky's biting or snapping at any child. "Knowledge that a dog is ferociously disposed toward other animals is ordinarily not notice that it will attack persons." 4 Am.Jur.2d, Animals, § 95.

The plaintiff's evidence also fails to show negligence by the defendant Moore in the operation of his automobile.

Moore was driving 35 miles per hour, which was not in excess of the maximum speed limit. He was approaching a "T" intersection, proceeding along the top of the "T." The intersection was protected by a stop sign on the other street. He had his two children, two and three years of age, respectively, in the car with him. To bring his automobile to a sudden stop would seriously jeopardize their safety. He saw a 14 year old boy riding a bicycle and a dog three or four feet behind the bicycle. There is nothing to suggest that Moore should have known the dog was chasing the bicycle or that the boy was afraid of it. The scene confronting Moore was consistent with that of a normal 14 year old boy followed by his own dog. At that point there is nothing to indicate that Moore should have anticipated that the boy on the bicycle would continue straight across the "T" intersection without turning one way or the other into Vest Mill Road. When he observed the boy pedalling rapidly, Moore pulled his automobile entirely off the pavement onto the shoulder and the collision occurred when all four wheels of the Moore vehicle were off the pavement. The shoulder was approximately the width of the car. Had the bicycle not struck the car, it would certainly have gone across the shoulder, over the drop-off and into the wooded area beyond Vest Mill Road. We can only conjecture as to what injuries Larry would have sustained in that event.

Had Larry turned to the left or to the right on Vest Mill Road, he would not have struck the Moore vehicle. Moore's failure to blow his horn after it became apparent that Larry would not turn in either direction could not have been a proximate cause of the collision for there was then not sufficient time for Larry to alter his course and avoid the collision.

Moore was acting in an emergency not created by his own conduct. In such a situation he is not required to exercise precautions which calm, detached hindsight suggests might have been taken. He may not be held liable for failure to take those measures unless it can be said that a reasonable man faced with a like emergency would have done so. Forgy v. Schwartz, 262 N.C. 185, 136 S.E.2d 668. As in the Forgy case, "The evidence fails to show that an ordinary prudent person would have reacted more quickly or used better judgment under the same circumstances."

Since the evidence of the plaintiffs fails to show actionable negligence by any of the defendants, we do not reach the question of whether their evidence leads to the sole conclusion that the plaintiff Larry Sink, by his own negligence, contributed to his injuries. He has been grievously injured and *272 the evidence indicates that these injuries are permanent in nature. However, the evidence does not disclose any basis for imposing upon any defendant liability for those injuries or for the resulting loss to his mother. Consequently, there was no error in granting the several motions for judgment of nonsuit.

Affirmed.

MOORE, J., not sitting.