Hass v. Money
849 P.2d 1106
Okla. Civ. App.
1993
Check Treatment

*1 1821(d)(13)(D) provides: which U.S.C. § sub provided

“Except as otherwise jurisdiction

section, have no court shall added). “Except as other (emphasis

...” refers provided this subsection” 1821(d)(6)(A).

12 U.S.C. § did court not have trial Law claim to hear the Firm’s

jurisdiction attorney The order Law fees. attorney fees share of the $5000.00

Firm a action original foreclosure

awarded hold Because we reversed. Law jurisdiction hear did have claims, unnecessary it becomes

Firm’s made assignments error

consider jur- court lacked parties.

by the Since

isdiction, only is an order valid upon for failure to state claim

dismissal granted. relief

which DIRECTIONS.

REVERSED WITH JONES, concur. HASS, Appellant,

Julie

Steve MONEY Melissa

Money, Appellees.

No. 78801.

Court of 1.No.

Division 2, 1993. *2 Pike, ap- Stephen City, bility dogs, M. Oklahoma for for vicious and is not restricted pellant. owner. Be may, that as it there is dog, no evidence that the consid Kaufman, Katheryn City, K. Oklahoma ered in this has been found to be appellees. for required by vicious as and thus, definition of owner under the OPINION MEMORANDUM dog vicious ordinance is irrelevant. JONES, Judge: (Defendants) Moneys While the were on Argument is made that vacation, they dog Pepper- boarded their injury, at the time of her was or was not (Peppertree). Animal tree Clinic On June period remunerated for the time she 16,1990, (Plaintiff), employee Julie Hass looking dog was after the boarded Peppertree, by of was bitten while Peppertree facility. Similarly this consid walking him. She filed suit and the trial eration is immaterial. Under 4 O.S.1991 court sustained Defendants’ motion for 42.1, the unprovoked owner liable for § summary judgment. appeals. Hass causing injury persons attacks in or on a any dog In owners place they lawfully right have a to be. The shall be liable for the full amount of record contains no indication that the em damages sustained when their without ployee unlawfully present at the time. provocation, injures any person, bites or place while such or on a where The trial summary court issued he has a lawful to be. O.S.1991 judgment on the basis that (Since amended effective Feb. question there was no fact on the issue of 1992), reads as follows: negligence Appellees while injury by Personal dog Liability of own- — care of Appellant. exclusive Had er negligence this been a that decision any dog The owner or owners of shall be However, would have been correct. damages for liable the full amount of (4 42.1) appears O.S. to attach any damages sustained when his liability without fault. case Hamp provocation, injures any or bites By Through Hampton ton v. Ham person-is while such in or on a' mons, 743 P.2d 1053 states at he where has a lawful to be. liability 1058 that attaches under the stat generally, one who injured party proves ute where the owner responsible chooses to own a should be ship, provocation, injury, lack of and a law unprovoked attacks of the animal. It presence property. ful on the defendant’s remembered, however, must be that Title 4 (In Hammons the occurred on the provides O.S.1991 42.3 that the act does property). owner’s to rural areas of the or State cities or city towns do not have employee It is contended here the village U.S. Mail service. came within the definition of an owner at plaintiff, the time the bit thus bar, Peppertree In the case at Ani injuries she not recover for her from custody Appellees’ dog mal Clinic had Appellees possessing title to the when Hass bitten it. On premiss, Hampton, supra, is cited for this here, argument concerning is made because at 1059 the Court states “one ordinances, City spe Oklahoma vicious who ... undertakes to control the owner, cifically the definition of under Arti actions, may be considered to be the owner II, cle Division VICIOUS DOGS. Un However, meaning within the of the law.” 8-104.1(1), der Sec. of a vicious as the of Section III of that persons bold keeping, possessing, includes notes, opinion having custody this broad definition own Presumptively, the definition of er is a result of construction of owner has enlarged in responsi municipal dealing been order to insure a Tulsa ordinance with Clinic) from under O.S.1991 imal apparent intent of dogs.1 vicious disagree 42.2. I and dissent. enlarge is to definition broad harm caused potentially liable for those considering the liabil- dangerous instrumental amounts what or other- ity “owners” to bitten City ordi *3 is a similar Oklahoma ity. There different rules injured their nance, is not that definition but apply to “coun- dogs” “town than apply to the under record in this to the 42.1, 42.2, try dogs”. See 4 O.S.1991 §§ Consequently, appeal. on the Court before Here, dog” “town is involved. 42.3. a cannot be broad of owner the definition in 42.3 exception the should persons keeping a include here to ened Apparently, the law apply. not common in at 1059 language Hampton is There truism, a (which rise “even gave Stewart, in v. which states Whitefield bite”), applies “country one to is allowed (Okl.1978) at the Su P.2d 1295 577 offenders, City dogs, like human dogs”. extended the version preme Court bite”, now “one and strict are not allowed effect, choosing 42.1, person in to a then to their applies often owners. stating the monkey, harbor a of Supreme of the tenor In view to a owner. Note apply would also Hammons, Hampton in v. decisions however, it did not discuss the Court stated (Okl.1987), Hagler, Hood P.2d 1053 v. harboring, person or not a whether (Okl.1979), and P.2d Whitefield also legal right possession, would be Stewart, 577 P.2d purposes the bite statute. used in the the “owner” as above word Title 4 under O.S.1991 now determine We liberally should most statutes is restricted the definition per- broadly construed. “Owner” includes having pos to a the control, or main- possess, harbor sons who session. not, than a tain More often record a Here, statutory language applies in the exist, and “owner- title to a does party, the injured species established some of oral ship” is a time a she had to be control, claim, possession, dominion on injury. presented The record “ownership” as is established for oth- same provoca- not indicate the existence does personal property. er items of excuse the under tion which would held to Appellant should be have been an the statute. meaning of “owner” within the sustaining The Defen- trial court’s possession, custody, supra. She had Summary Judgment is For dant’s Motion dominion and of the at all times control the cause is remanded for reversed and in this involved case. merits.

trial on the (1) majority an “owner” The holds: having legal ownership AND REMANDED. limited to a REVERSED dog;1 (2) Appellant not an correct, majority If and if “owner”. concurs. or injured town had bitten a third GARRETT, dissents. Appellant walking the party while Appellant then neither nor similar- GARRETT, Judge, dissenting: ly situated would be liable under §§ “owner”; but, reasoning majority and 42.2 as conclusion, logical carried to its would be liable. In such event the common will (and protecting Appellant apparently result in others law doctrine “one bite” situated, (but similarly including Peppertree Appellant An- would favor “person majority opinion 1. The section III reads in full: Title 4 uses the term Tulsa legal right possession”, §O.S. 42.1 when construed with Munici- having but 1(d) pal title Ch. 1 includes as requires "legal ownership". this to mean context maintaining an owner dog. one a H09 Appellees) if some other member injured. ignores This

public was bitten and legislative intent.

obvious correctly my opinion, Appel- summary judgment for the

entered parties The statute allows third

lees.2 in tort. It does not authorize

sue “owners” injured “owner” to sue some that the defense of would hold

“owner”. facts,

assumption applies of risk to these as matter of law. *4 respectfully DISSENT. RUMMAGE, H. Trustee of the

Matilda Rummage Trust, H. Inter

Matilda Vivos Allen, III, Joseph N. and Posetta

Bailey, individually Executrix of and as Ward, of Melvina B. de

the Estate

ceased, Appellants, ex rel. STATE

DEPARTMENT OF TRANS

PORTATION, Appellee.

Nos. 78756 and 78757.

Division No. 3. ary party §§ 2. Since neither to this action makes 1992. Whatever the effect 43,1 be, through may they contention under 4 O.S.1991 assume it is cannot to this case. apply to the case considered. through 47 were enacted in 4 O.S.1991 1991, but did not become effective until Febru-