McConnell v. Lloyd, Appeal, No. 121

Appeal, No. 121 | Pa. Super. Ct. | Nov 21, 1898

Opinion by

Smith, J.,

The plaintiff, while lawfully passing over the Haverford College grounds, was bitten and seriously injured by the defendant’s dog. This action was brought to recover for the injuries thus received, and resulted in a verdict and judgment in her favor. On the argument here it was admitted that the defendant was the owner of the dog at the time of the injury to the plaintiff 'and prior thereto; and that, under the evidence, the verdict was not excessive. But it was earnestly argued that the evidence did not show the dog to be vicious theretofore, or that the defendant had reason to believe the animal vicious, prior to the injury complained of here. It was further contended that the evidence on these points was not sufficient to warrant the submission of the case to the jury. This proposition was supported by a very able and exhaustive argument, in which the distinction between a mere scintilla of evidence, and that which is reasonably sufficient in law to support a verdict, was lucidly presented. We think, however, there was evidence touching the prior mischievous conduct of the dog, and the defendant’s knowledge of it before the attack' on the plaintiff, to require this aspect of the case to be decided by the jury. The existence of a mischievous propensity to commit the act, and knowledge of this by the defendant before the injury, were questions of fact, in support of which there was evidence quite sufficient to raise an issue thereupon for the jury. It was shown that on two different occasions, before attacking this plaintiff, the dog, while with the defendant’s wife, rushed at two other women, in a very vicious manner. He jumped up at one, and was about to take hold of the other, as. she thought, when he was called off by Mrs. Lloyd. The defendant testified that he got the dog because his wife wanted it, that she was alone, practically all day, and was about the grounds a great deal, and wanted the dog as a companion. It was admitted in the court below, and is not denied here, that if circumstances showing a vicious disposition in the dog were known to the wife, who had the care of it, this was knowledge sufficient to bind her husband. The question was not pressed or argued here.

From the plaintiff’s testimony it' appears that the dog attacked her, in a manner quite similar to the former attacks on the other women, but that, disregarding the command of Mrs. Lloyd, he bit the plaintiff’s arm. It is not necessary, in order to recover in this action, to show that the dog had actually bitten another person, before biting the plaintiff. If the dog evinced a propensity or habit indicating an intention to bite, the owner, having a knowledge of this, will be held responsible for any subsequent injury growing out of such propensity. This case was tried in accordance with the well-established principles of law announced and applied in Mann v. Weiand, 81* Pa. 248. Under the authority of that case this judgment must be affirmed.

Judgment affirmed. ■

W. W. Pouter, J., dissents.