Hamby v. Haskins ( 1982 )

Robert H. Dudley, Justice.

Appellee Waltrand Amelia Haskins and her sister were driving in rural Sebastian County one afternoon in June of 1976 looking for a garage sale. After they were unsuccessful in finding its location, they stopped at appellant Ron Hamby’s house to ask directions. The yard was not fenced and there was a large dog on the ground near the porch. Appellee got out of the car, walked up on the porch and knocked on the door. No one answered so appellee stepped off the porch and started walking back to the car when the dog bit her on the left calf and subsequently began barking. Appellee got back in the car and her sister drove to the police station in nearby Hackett. The Hackett police officers went back to appellant’s residence and found it necessary to subdue the snarling dog with mace. An ambulance was called and appellee was transported to a hospital where she was treated and released. Because of gangrene and other complications, appellee was admitted to the hospital on two later occasions. Her medical bills totaled $1,734.45 and her loss of wages over a two-month period equaled $800. Appellee’s complaint alleged strict liability and negligence on appellant’s part as owner of a vicious dog and sought $20,000 in damages. Appellant responded that appellee was a trespasser on his property and that he had no knowledge of the vicious nature of the dog. Trial by jury resulted in a verdict of $12,000. We affirm.

Appellant argues that the evidence is insufficient to support a j ury verdict because the appellee did not prove that the dog had a propensity to injure and that the owner had knowledge of those vicious tendencies. In Bradley v. Hendricks, 251 Ark. 733, 474 S.W. 2d 677 (1972) this court said:

... It is well settled in Arkansas that when a person is injured by a domestic animal legally permitted to run at large by its owner, in order for the injured person to recover damages from the owner without the necessity of proving the owner’s negligence, it must be shown that the animal has vicious tendencies or dangerous propensities and that the owner knew, or should have known, of such tendencies or propensities . . . The evidence as to the owner’s knowledge boils down to a question of credibility and this too, is a question for the jury.

The j ury found that appellant knew that the dog had vicious tendencies and there was substantial evidence for that finding. There was testimony that appellant knew the dog had been penned up by its prior owner. There was testimony that when police officers went back to appellant’s residence to investigate, the dog began barking and snarling and attempted to bite both officers and they found it necessary to subdue the dog by the use of two cans of mace. The dog was then tied up for ten days in order to test it for rabies and appellant subsequently allowed the dog to roam free, even though he knew it had bitten appellee. Subsequent conduct is admissible to prove the particular animal’s dangerous nature. Finley v. Smith, 240 Ark. 323, 399 S.W. 2d 271 (1966). And language in Reeves v. John A. Cooper Co., 304 F. Supp. 828 (W.D. Ark. 1964) is dispositive of appellant’s claim that he did not have knowledge of the dangerous propensity of his dog.

The rule of ascertaining scienter is that the knowledge need not necessarily be actual, in the ordinary acceptation of that term, either constructive or imputed notice being sufficient, and if in the exercise of reasonable diligence and common prudence the owner ought to have known that his animal was dangerously inclined and might, if unrestrained, inflict injury upon the person or property of another, he is chargeable with actual notice of vicious acts committed by it.

In determining the sufficiency of the evidence, we review the evidence and all of its reasonable inferences in the light most favorable to the appellee and affirm if there is any substantial evidence to support the finding of the jury. Thrifty Rent-A-Car v. Jeffrey, 257 Ark. 904, 520 S.W. 2d 304 (1975). Viewing the evidence and its inferences in the light most favorable to appellee there is substantial circumstantial evidence from which the jury could find that the appellant knew or ought to have known, of the vicious nature of the dog. Appellant continues this argument by contending that since he testified that he did not have actual knowledge of the dog’s vicious tendencies the evidence is undisputed. But a party’s testimony cannot be considered undisputed or uncontradicted. Roberts v. Simpson, 275 Ark. 181, 628 S.W. 2d 308 (1982); Old Republic Insurance Co. v. Alexander, 245 Ark. 1029, 436 S.W. 2d 829 (1969).

Appellant’s second point for reversal is that the verdict was not supported by any substantial evidence of willful and wanton misconduct on his part. He urges this standard applies because appellee was classified as a trespasser in the instructions given to the jury and the only duty owed to a trespasser is not to willfully or wantonly injure him after his presence is known. Southwestern Bell Telephone Co. v. Davis, 247 Ark. 381, 445 S.W. 2d 505 (1969); AMI 1102. [There were no objections to the instructions and we do not consider unargued issues. However, we do note that the doctrine of strict liability is the law in Arkansas with regard to an animal known to be vicious. Strange v. Stovall, 261 Ark. 53, 546 S.W. 2d 421 (1977)]. Appellant asserts that because neither he nor any of his family were at home when the incident took place then he could not be guilty of this type of gross negligence. The jury obviously found that the appellant was guilty of willful or wanton conduct by not having the dog penned up. The testimony showed that the dog’s prior owner kept it penned up and this evidence, coupled with evidence that appellant allowed the dog to continue to roam free even after it bit appellee, was sufficient evidence on which to base the verdict.

The instruction may have been more favorable than necessary as the Restatement (Second) of Torts, § 330, p. 174, referring to a “license created otherwise than by words” is as follows:

. . . “The well-established usages of a civilized and Christian community” entitle everyone to assume that the possessor of land is willing to permit him to enter for certain purposes until a particular possessor expresses unwillingness to admit him. Thus a traveler who is overtaken by a violent storm or who has lost his way, is entitled to assume that there is no objection to his going to a neighboring house for shelter or direction ....

This common sense statement is applicable to the case before us.

Appellant next contends that the matter of insurance was improperly included in voir dire. Counsel for appellee asked the jury panel if any of them, their spouses or close relatives were employed by an insurance carrier. One prospective juror mentioned that his wife had been employed by the company which he thought to be appellant’s insurance company until a short time ago. A few others also mentioned connections with specific insurance carriers. Appellant objected to the fact that the panel had been placed on notice that insurance was involved. The rule in Arkansas as to this point seems clear. In Dedmon v. Thalheimer, 226 Ark. 402, 290 S.W. 2d 16 (1956), this court said, “The test of whether counsel may ask questions of veniremen in regard to insurance is whether the questions are propounded in good faith.” Since insurance was involved here, the question of good faith is settled. This issue was also discussed in King v. Westlake, 264 Ark. 555, 572 S.W. 2d 841 (1978) where this court said:

. . . the purpose of voir dire examination is to enable counsel to ascertain whether there is ground for a challenge of a juror for cause, or for a peremptory challenge and that so long as counsel acts in good faith, he may in one form or another, question prospective jurors respecting their interest in or connection with liability insurance companies.

The general questions asked by appellee did not violate this rule. DeLong v. Green, 229 Ark. 100, 313 S.W. 2d 370 (1958).

Appellant’s last point for reversal is that the damages awarded were excessive. Appellee’s medical bills and lost wages totaled $2,534.55 and she was awarded $12,000. There was evidence as to pain and suffering by the appellee as she endured two subsequent hospitalizations, one for the removal of gangrenous tissue and the other for skin grafting. Appellee also spent two months recuperating at her parents’ home with her leg elevated most of this time. Appellee now has two three-inch square scars which are clearly visible five years after the accident. There is no definite and satisfactory rule to measure compensation for pain and suffering and the amount of damages must depend on the circumstances of each particular case. Morrison v. Lowe, 274 Ark. 358, 625 S.W. 2d 452 (1981). Compensation for pain and suffering must be left largely to the sound discretion of a trial jury and the conclusion reached by it should not be disturbed unless the award is clearly excessive. Missouri Pacific Railroad Co. v. Hendrix, 169 Ark. 825, 277 S.W. 337 (1925). Wedonotfind the award of damages so shocking that we will order a remittitur.

Affirmed.

Adkisson, C.J., concurs. Hickman, J., dissents.