Perkins v. Drury , 57 N.M. 269 ( 1953 )

SADLER, Chief Justice.

The defendant appearing before us as an appellant complains of a judgment rendered against him in favor of the plaintiff below suing individually and as next friend for her minor daughter two and one-half years old at time of trial who was severely bitten by a dog while on the premises of the defendant in the company of her parents.

The defendant owned certain property at 900 West Hobbs.Street in the city of Roswell on which he maintained a home as well as an automobile repair garage which at the time in question was rented to other parties but was generally open to the public and as well to two cocker spaniel male dogs of defendant. These dogs were customarily kept in the immediate personal custody of defendant during daylight hours. Actually, at time the minor was bitten by the younger of them defendant already had arranged to give him to a third party but had not yet made delivery and it was still in the actual possession and on the premises of defendant.

About - three weeks prior to the time of the attack on the minor child by the younger of the two dogs, the father of the minor had taken his car out to the garage to have some work done on it and the two boys operating the garage invited him to bring the car out again if he needed any work done on it. Thus it was that some three weeks later, the car needing minor repairs, he again took it out- to this garage to have the work done, arriving there about 11 o’clock in the forenoon. He was accompanied by his wife and two minor daughters, one of them being Sharon Louise Perkins not yet two years old and the other Gloria Nell Perkins, her sister, about ten years of age.

Upon arriving at defendant’s premises the father drove his car halfway into the completely open garage. There was no one present in the garage though he noticed a workman on the “loader” standing on defendant’s premises near by. The father alighted and raised-the hood. The mother and two children also got out of the car. His wife stood by the husband’s side watching him check the car; Gloria, the elder of the two children, stood near the center of the garage and the “baby Sharon”, who was able to walk, upon leaving the car had toddled over to the side door on the east side of the building at its north end.

They had been in the garage but a short time, perhaps twenty minutes, when the father heard the baby cry out and her mother and little sister scream. Upon looking up, he heard the younger of the two dogs growling and saw him attacking the baby who was lying flat on her back .with the dog snapping at her face.

The little sister was trying to pull the ■dog away from the attack it was making on the child. The father quickly ran around the front of his car to the scene of the attack by which time the mother had already reached the children. The baby was bleeding profusely. The man on the loader ■came over from where he was working some 40 feet away and said, “I will get the boss,” which he did át once.

In the meantime, the dog had been driven away and the mother had picked up the ■child from the ground and was holding -it in her arms. The defendant arrived presently and sought to reassure the parents by saying the injury appeared to be but “a little scratch” and that the dog had only recently been vaccinated. The parents immediately rushed the child to the hospital where the dog bite on the cheek appeared to be a deep cut in the shape of a cross. It took the doctor 45 minutes to treat the child’s wounds and required 19 stitches, leaving permanent scars. The trial judge made findings touching the events just related in the evidence, as follows:

“3. For a long period of time prior to August 1, 1950 the Defendant, Dru-ry, had owned two adult registered male Cocker Spaniel Dogs which were usually and customarily kept in his immediate personal custody during the daylight hours, one of which was named ‘Pancho’; that shortly prior to August 1, 1950, the Defendant had made arrangements to dispose of the dog ‘Pan-cho’ by gift to a third party, but no delivery thereof had been made on August 1, 1950 and the dog remained in the exclusive possession of the defendant upon that date.

“4. That the dog ‘Pancho’, on August 1, 1950, and at all times material hereto, was possessed of a propensity or tendency toward viciousness, especially toward small .children, which was brought about by a spirit of jealousy on the part of the.animal, and for a long period of time prior, to the said date the defendant had actual knowledge, or in the exercise of reasonable care as an ordinarily prudent'person, he should have known of the propensity toward viciousness on the part of the animal, and that, if permitted to roam at large the animal was likely to attack and injure small children, but at no time on or prior to August 1, 1950, did the defendant act in any manner to restrain the animal other than to give warning to members of his immediate family and to an employee not to permit their children to play in the vicinity where the dog might be.

“5. That the Defendant, by keeping or harboring the animal in question, with knowledge of its vicious propensity, and without taking steps to confine the animal, or otherwise protect against injury, should, in the exercise of reasonable discretion, have anticipated an injury of the type and character which actually occurred, and his failure to confine the animal, or take other steps to safeguard against injury, was the sole and proximate cause of the injuries which were inflicted upon the person of Sharon Louise Perkins, as hereinafter described.

“6. That on the late morning of August 1, 1950, the Plaintiff, in company with her husband and two minor daughters, one of whom was Sharon Louise Perkins, drove an automobile to the Defendant’s premises for the purpose of repairs, and upon arrival all of the occupants, including the minor Sharon Louise Perkins, got out of the car and remained in the garage building where the Plaintiff’s husband and the Plaintiff did some work on or about the automobile.

“7. That a few minutes after the Plaintiff arrived upon said premises the dog, ‘Pancho’, entered the building through the open doorway, where the minor child was playing and, without warning or provocation of any kind or character the animal attacked said minor, knocking' her to the floor and biting her in and about the face, particularly the right cheek; that the attack aroused the immediate attention of the Plaintiff and her other minor daughter who immediately intervened and drove the animal away from the minor child but only after the injuries hereinafter described were inflicted.

“8. That two gaping wounds were inflicted in the right cheek of the minor, Sharon Louise Perkins, one slightly over one and one-half inches in length, and the other slightly over one-half inch in length; that the child was immediately brought to the office of a medical doctor who immediately administered a local anesthetic and applied sutures to draw the wounds together, which sutures were removed three days after the attack; that the minor child underwent severe pain and suffering almost constantly over a period of two weeks following the injury.

“9. That a maximum degree of recovery has been effected, hut the minor child now suffers a permanent pliability defect to the flesh in the right cheek, a slight difference in size in the right and left cheeks exists and visible scars to the right cheek remain which are disfiguring in character.”

The sole question raised on the appeal is whether the evidence supports the finding by the trial judge that the vicious propensities of the dog making the attack on the little child, under two years of age, were known to defendant. He held against him on the proposition and awarded judgment against defendant for $900 in favor of the infant and $95.09 in favor of the mother, individually, for damages suffered by her for medicines, drugs and for loss of time from employment. The damages awarded in neither instance are questioned, either as to amount or propriety. We have, then, only to consider whether there was sufficient evidence to sustain the finding that the dog’s vicious nature was known to the defendant, a question about which we entertain no doubt.

We have sifted the testimony carefully and have no hesitancy in saying it supports the inference the trial judge drew that the defendant knew the dog was vicious and dangerous to children. That this was so is evidenced by frequent warnings he gave to others, including a former employee, and to his own daughter, to keep the children away from the dogs, or to guard them carefully when on his premises lest they be bitten or injured by them. True enough, usually if not invariably according to testimony of adverse witnesses answering suggestively leading questions on cross-examination, he coupled his warning with talk about the younger dog being jealous of the older one, thus causing frequent fights between them, during which there was danger the children might “accidentally” be bitten. But this effort to explain danger to children from the dogs became so stock an answer from adverse witnesses on which plaintiff’s entire case as to this issue depended, as no doubt to cause the trial judge to paraphrase in his mind the famed Shakespearian quotation from Hamlet, to read: “Methinks he doth protest too much.”

It is to be remembered that the defendant put on no evidence at all and stood on the trial court’s action in over-6" ruling his motion for judgment when the plaintiff rested. Under such circumstances, the defendant must bear a heavy burden. All testimony introduced by the plaintiff, with every inference it will reasonably bear, must be accepted as true. Furthermore, we will consider only the testimony which supports the judgment and reject the conflicting testimony in testing the substantial character of the evidence. City of Roswell v. Hall, 45 N.M. 116, 112 P.2d 505; Dickerson v. Montoya, 44 N.M. 207, 100 P.2d 904; Williams v. Engler, 46 N.M. 454, 131 P.2d 267; Sundt v. Tobin Quarries, 50 N.M. 254, 175 P.2d 684, 169 A.L.R. 586.

There is little point to citing or quoting at length from cases on the question at issue before us. If the dog was vicious or possessed dangerous propensities and this fact was known to defendant, that ends . the matter. We recently had before us a case in which damages were sought for a “dog bite.” Torres v. Rosenbaum, 56 N.M. 663, 248 P.2d 662. But there is little in the cáse to aid us in the present appeal, and the same is true of Garcia v. Chavez, 54 N.M. 22, 212 P.2d 1052. It is not out of place at this point to observe,, however, that the old doctrine of every dog being entitled to “one bite” is out of harmony with a modern humanitarian society. See Hill v. Moseley, 220 N.C. 485, 17 S.E.2d 676. The keeper of a dog must observe manifestations of danger from him. to human beings from other trait's than viciousness alone, short of actual injury to some person, and cannot neglect to keep him in restraint until, as in substance declared by an aroused judge, he has “effectually killed or mangled at least one' person.”

There can be little doubt the dog here involved had a vicious nature and that defendant knew such was the case. At times he kept the dog on a leash. He usually kept the two dogs in his immediate personal custody during daylight hours. The ferocious nature of the two dogs, especially the younger one, was evidenced by frequent fights in which he engaged with the older dog. While there is no evidence, it is true, of an attack on a person than the one made the basis of this action, the fact finder may infer the vicious nature of a dog from one act, especially if it be an attack on a person. Perazzo v. Ortega, 29 Ariz. 334, 241 P. 518. And that defendant was himself apprehensive of such an attack is fairly suggested by the frequent warning given to a former ¡employee, his own daughter and others, to keep the children off the premises or under guard while there lest they be bitten by one of the dogs during frequent fights between them.

This, alone, was enough to render defendant liable for injury to the child for failure on the owner’s .part to restrain the dogs whether or not they fent'ertained vicious propensities toward children; It is likelihood of injury to persons from the dogs, while at large, whether the injury flow from anger, playfulness, or any other cause. See 3 C.J.S., Animals, § 148(c), page 1250; Owen v. Hampson, Ala.Sup., 62 So.2d 245; Dranow v. Kolmar, 92 N.J.L. 114, 104 A. 650; Crowley v. Groonell, 73 Vt. 45, 50 A. 546, 55 L.R.A. 876, 87 Am. St.Rep. 690.

In Owen v. Hampson, supra [62 So.2d 248], the court said:

“Based on a review of our cases, as well as those from other jurisdictions, it is our opinion that the law makes no distinction between an animal dangerous from viciousness and one merely mischievous or dangerous from playfulness, but puts on the owner of both the duty of restraint when he knows of the animal’s propensities. Crowley v. Groonell, 73 Vt. 45, 50 A. 546, 55 L.R.A. 876; State [Evans] v. McDermott, 49 N.J.L. 163, 6 A. 653; Knowles v. Mulder, 74 Mich. 202, 41 N.W. 896; Hicks v. Sullivan, 122 Cal.App. 635, 10 P.2d 516; Mercer v. Marston, 3 La. App. 97; Hartman v. Aschaffenburg, La.App., 12 So.2d 282.”

The owner’s knowledge of vicious or dangerous propensities in his dog may be inferred from circumstances, positive proof of such knowledge not being required. Ciecierski v. Hermanski, 182 Ill.App. 113 and Rickett v. Cox, 297 Ky. 30, 178 S.W. 2d 830; Benke v. Stepp, 199 Okl. 119, 184 P.2d 615; Fullerton v. Conan, 87 Cal.App. 2d 354, 197 P.2d 59.

We have no statute in New Mexico, as do some states, making the owner of a dog an insurer against damages inflicted by it. Our only statute on the subject is 1941 Comp. § 49-104, making it unlawful to keep a dog known to be vicious. The common law is the test of liability in this case and the plaintiff has fully met the test in her proof.

The judgment is without error and should be affirmed.

It is so ordered.

COMPTON and COORS, JJ., concur. McGHEE and LUJAN, JJ., dissenting.