Griner v. Smith , 43 N.C. App. 400 ( 1979 )

259 S.E.2d 383 (1979) 43 N.C. App. 400

Lonnie A. GRINER
v.
Dallas W. SMITH and wife, Wilma Smith, d/b/a Sandy Hill Farm.

No. 7819SC978.

Court of Appeals of North Carolina.

November 6, 1979.

Burke, Donaldson & Holshouser by Arthur J. Donaldson and William D. Kenerly, Salisbury, for plaintiff-appellee.

Hudson, Petree, Stockton, Stockton & Robinson by W. Thompson Comerford, Jr., and John F. Mitchell, Winston-Salem, for defendants-appellants.

MORRIS, Chief Judge.

The primary question presented by defendants' appeal concerns the application of the North Carolina rule with respect to the liability of the keeper of domestic animals. Defendants contend that the trial court's instructions were erroneous because they failed to require the jury to find that Dana's April had a vicious propensity and that defendants knew or should have known of this propensity. We reject defendants' contention for the reasons explained below.

The notion that a party must show the dangerous propensity of a domestic animal before establishing a basis for recovery arose originally in what were essentially strict liability cases. See generally Prosser, Law of Torts § 76 (4th Ed.1971). The basis of the action was the neglect or failure of the owner to restrain the domestic animal known to be vicious and thus liable to do harm. See generally 3A C.J.S. Animals § 177; 4 Am.Jur.2d, Animals § 86. See also Restatement, Second, Torts § 509, comment d. The Early North Carolina decision of Cockerham v. Nixon, 33 N.C. 269 (1850), was expressed in language which smacks of such strict liability. The Court reasoned that the "fact [of a bull's viciousness and dangerousness] coming to the knowledge of the owner, is notice sufficient to put him in the wrong and make him liable for the consequences of his neglect to keep the animal confined." Id. at 270. The Court further stated:

"When the owner knows or has reason to believe that an animal is dangerous, on account of a vicious propensity in him, from nature or habit (a term used to denote an acquired as distinguished from a natural vice), it becomes his duty to take care that no injury is done; and he is liable for any injury which is likely to be the result of this known vicious propensity." Id. at 271.

Although there may be argument to the contrary, we do not believe our Courts have ever authoritatively determined whether the strict liability rule as applied at common law now applies in North Carolina. The Court in Hill v. Moseley, 220 N.C. 485, 17 S.E. 676 (1941), raised the issue but concluded that it was unnecessary to resolve the question in that action based upon negligence. Some other decisions applying the rule do not specify whether the action was brought in negligence. See e. g., Sellers v. Morris, 233 N.C. 560, 64 S.E. 662 (1951); Plumides v. Smith, 222 N.C. 326, 22 S.E.2d 713 (1942); Harris v. Fisher, 115 N.C. 318, 20 S.E. 461 (1894).

Recent decisions of the Supreme Court and this Court rendered in negligence actions suggest that the gravamen of the action is not negligence, yet nevertheless apply the standard of a reasonable person. See e. g., Sink v. Moore and Hall v. Moore, 267 N.C. 344, 148 S.E.2d 265 (1966); Sanders v. Davis, 25 N.C.App. 186, 212 S.E.2d 554 (1975); Miller v. Snipes, 12 N.C.App. 342, 183 S.E.2d 270 (1971), cert. denied, 279 N.C. 619, 184 S.E.2d 883 (1971). All of these cases involved negligence actions. To the extent that those cases applied the reasonable person standard in the context of negligence actions seeking to recover for injury caused by the dangerous propensity of the animal, the decisions are no doubt correct. To the extent the language in those decisions might by implication affect other actions, it is dictum.

Our brief summary of the history of the North Carolina vicious propensity rule indicates that often times decisions are rendered without distinguishing between traditional negligence actions and actions which at common law might amount to actions involving strict liability. The reported decisions most often applying the vicious propensity rule arise in what is clearly a negligence context. See e. g., Swain v. Tillett, 269 N.C. 46, 152 S.E.2d 297 (1967); Sink v. Moore and Hall v. Moore, supra; Hill v. Moseley, supra; Hallyburton v. Fair Association, 119 N.C. 526, 26 S.E. 114 (1896); Pharo v. Pearson, 28 N.C.App. 171, 220 S.E.2d 359 (1975); Sanders v. Davis, supra; Miller v. Snipes, supra; Patterson v. Reid, 10 N.C.App. 22, 178 S.E.2d 1 (1970). Into these decisions has been infused precedent from decisions such as Cockerham v. Nixon, supra, which presented facts which at common law would have supported a strict liability action upon proof of vicious propensity and knowledge by the owner. We consider this observation pertinent because it explains the origin of the rule as has been stated in negligence cases. What has evolved therefrom is not actually a hybrid cause of action but a line of cases enunciating a rule encompassing a specific application of the traditional standard of reasonable care in negligence actions. The rule correctly requires the keepers of domestic animals to guard against injury or damage from reasonably anticipated conduct of these animals. See generally Prosser, Law of Torts § 33 at 170 (4th ed. 1971). The line of cases beginning with Rector v. Coal Co., 192 N.C. 804, 136 S.E. 113 (1926), state the rule as follows:

"The liability of an owner for injuries committed by domestic animals, such as dogs, horses and mules, depends upon two essential facts:

1. The animal inflicting the injury must be dangerous, vicious, mischievous, or ferocious, or one termed in the law as possessing a ``vicious propensity.'

2. The owner must have actual or constructive knowledge of the vicious propensity, character, and habits of the animal." 192 N.C. at 807, 136 S.E. at 115.

This statement of the rule is accurate insofar as it is applied in cases wherein the damages are caused by the vicious propensity of the animal which is or should be known to the keeper. Compare Restatement, Second, Torts § 509(2); see also Prosser, Law of Torts § 79 at 517-18. These cases should not, however, be read as restricting the rights of action against the keeper of a domestic animal when injury is caused by conduct other than viciousness of an animal. For example, in Lloyd v. Bowen, 170 N.C. 216, 86 S.E. 797 (1915), the Court specifically rejected the contention raised by defendants that whenever an owner is sued for damage or injury caused by a domestic animal he must prove a vicious propensity and knowledge:

"[K]nowledge by the owner of the vicious propensities of his horse is not always essential to a recovery in an action for injuries alleged to have been caused by the owner's negligence. There may be negligence apart from this, but if the owner is not otherwise negligent and the injury is caused by the viciousness of the horse, then knowledge must be shown in order to charge the owner . . . ." 170 N.C. at 221, 86 S.E. at 799.

This is the accepted rule. The owner of a domestic animal is chargeable with knowledge of the general propensities of certain animals and he must exercise due care to prevent injury from reasonably anticipated conduct. See generally 4 Am.Jur.2d, Animals § 89, 3A C.J.S., Animals § 178; Prosser, id. Therefore, not all actions seeking recovery for damage caused by a domestic animal need involve the vicious propensity rule.

The language of the Court in Lloyd v. Bowen, supra, is uniquely appropriate here. In response to a challenge to the sufficiency of instructions in a case where plaintiff was injured by defendant's horse, the Court concluded:

"The court correctly defined negligence and proximate cause, and also properly applied the rule of the prudent man to the facts as the jury might find them to be. The question of negligence in regard to the horse did not depend, in this case, solely upon defendant's previous knowledge of his vicious or unruly habits. It would be a circumstance to be weighed with others disclosed by the evidence." 170 N.C. at 220, 86 S.E. at 798.

Defendants next assign error to the trial court's denial of their motions for directed verdict on the specific grounds that "there was insufficient evidence of vicious propensity or of defendants' knowledge of any vicious propensity of Dana's April for the case to be submitted to the jury". In light of our previous discussion, it is clear that defendants' negligence does not depend solely upon their knowledge of Dana's April's vicious propensity. There was sufficient evidence of other bases of negligence to go to the jury.

Defendants' third assignment of error asserts prejudicial error in the admission of testimony concerning an offer of compromise. The testimony arose during direct examination of the plaintiff:

"Q. At the time when Mr. Smith brought Black Friday back to your acreage, did you have any conversation with him about Black Lake Bars?

A. Yes, I did.

Q. Do you recall who started that conversation? Who initiated it?

A. He did.

Q. How did that conversation start?

A. Well, he said he would like to make restitution.

MR. VAN HOY: OBJECTION.

COURT: OVERRULED.

EXCEPTION NO. 2

Q. What did he say?

A. He said that he would like to make restitution.

MR. VAN HOY: Your Honor, I would like to be heard on that, please.

COURT: All right, Members of the jury, go to the jury room."

A voir dire was conducted after which the trial court instructed the jury as follows:

"COURT: Members of the jury, the court instructs you not to consider that part of Mr. Griner's testimony in which he stated that Mr. Smith said that he would like to make restitution."

In our opinion, the prejudicial effect of the testimony concerning the offer of compromise was sufficiently dissipated by the trial court's prompt dismissal of the jury and subsequent instruction not to consider that testimony. Furthermore, it is clear from the record that the defendants' counsel failed properly to move to strike the incompetent testimony. See generally 1 Stansbury, N.C. Evidence § 27 (Brandis rev. 1973).

Finally, defendants argue that certain testimony elicited on redirect examination of plaintiff concerning the training of a new horse so that it could work like Black Lake Bars did before her death was incompetent. Defendants' counsel interposed a timely objection and motion to strike the testimony. The appropriate measure of damages for the loss of livestock is the value of the animal alive just prior to its loss, minus the value, if any, of the carcass when there is evidence of the value of the carcass. See e. g., Godwin v. R. R., 104 N.C. 146, 10 S.E. 136 (1889); Boing v. R. R., 91 N.C. 199 (1884); Roberts v. R. R., 88 N.C. 560 (1883); see also Rippey v. Miller, 46 N.C. 479 (1854) (horse killed by defendant). See generally Annot., 79 A.L.R.2d 677 (1961). Evidence concerning the expense of training a horse to do those things which Black Lake Bars was able to do is only remotely relevant to the value of the horse before its death, in light of plaintiff's specific testimony as to the fair market value of the horse. Although the remoteness of the probative value of evidence is often grounds for its exclusion, in our opinion the testimony was not of sufficient prejudicial character to render its admission prejudicial error requiring a new trial.

For the reasons stated, we find in the trial court proceedings

No error.

PARKER, C. J., and HARRY C. MARTIN, J., concur.