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  "name": "LONNIE A. GRINER v. DALLAS W. SMITH and wife, WILMA SMITH, d/b/a SANDY HILL FARM",
  "name_abbreviation": "Griner v. Smith",
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    "judges": [
      "Judges PARKER and MARTIN (Harry C.) concur."
    ],
    "parties": [
      "LONNIE A. GRINER v. DALLAS W. SMITH and wife, WILMA SMITH, d/b/a SANDY HILL FARM"
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    "opinions": [
      {
        "text": "MORRIS, Chief Judge.\nThe primary question presented by defendants\u2019 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\u2019s instructions were erroneous because they failed to require the jury to find that Dana\u2019s April had a vicious propensity and that defendants knew or should have known of this propensity. We reject defendants\u2019 contention for the reasons explained below.\nThe 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 \u00a7 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 \u00a7 177; 4 Am. Jur. 2d, Animals \u00a7 86. See also Restatement, Second, Torts \u00a7 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 \u201cfact [of a bull\u2019s 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.\u201d Id. at 270. The Court further stated:\n\u201cWhen 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.\u201d Id. at 271.\nAlthough 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. 2d 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. 2d 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).\nRecent 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.\nOur 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 \u00a7 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:\n\u201cThe liability of an owner for injuries committed by domestic animals, such as dogs, horses and mules, depends upon two essential facts:\n1. The animal inflicting the injury must be dangerous, vicious, mischievous or ferocious, or one termed in the law as possessing a \u2018vicious propensity.\u2019\n2. The owner must have actual or constructive knowledge of the vicious propensity, character and habits of the animal.\u201d 192 N.C. at 807, 136 S.E. at 115.\nThis 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 \u00a7 509(2); see also Prosser, Law of Torts \u00a7 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:\n\u201c[KJnowledge 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\u2019s 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 . . . .\u201d 170 N.C. at 221, 86 S.E. at 799.\nThis 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 \u00a7 89, 3A C.J.S., Animals \u00a7 178; Prosser, id. Therefore, not all actions seeking recovery for damage caused by a domestic animal need involve the vicious propensity rule.\nThe 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\u2019s horse, the Court concluded:\n\u201cThe 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\u2019s previous knowledge of his vicious or unruly habits. It would be a circumstance to be weighed with others disclosed by the evidence.\u201d 170 N.C. at 220, 86 S.E. at 798.\nDefendants next assign error to the trial court\u2019s denial of their motions for directed verdict on the specific grounds that \u201cthere was insufficient evidence of vicious propensity or of defendants\u2019 knowledge of any vicious propensity of Dana\u2019s April for the case to be submitted to the jury.\u201d In light of our previous discussion, it is clear that defendants\u2019 negligence does not depend solely upon their knowledge of Dana\u2019s April\u2019s vicious propensity. There was sufficient evidence of other bases of negligence to go to the jury.\nDefendants\u2019 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:\n\u201cQ. At the time when Mr. Smith brought Black Friday back to your acreage, did you have any conversation with him about Black Lake Bars?\nA. Yes, I did.\nQ. Do you recall who started that conversation? Who initiated it?\nA. He did.\nQ. How did that conversation start?\nA. Well, he said he would like to make restitution.\nMr. Van Hoy: Objection.\nCourt: Overruled.\nException No. 2\nQ. What did he say?\nA. He said that he would like to make restitution.\nMR. VAN HOY: Your Honor, I would like to be heard on that, please.\nCOURT: All right, Members of the jury, go to the jury room.\u201d\nA voir dire was conducted after which the trial court instructed the jury as follows:\n\u201cCOURT: Members of the jury, the court instructs you not to consider that part of Mr. Griner\u2019s testimony in which he stated that Mr. Smith said that he would like to make restitution.\u201d\nIn our opinion, the prejudicial effect of the testimony concerning the offer of compromise was sufficiently dissipated by the trial court\u2019s prompt dismissal of the jury and subsequent instruction not to consider that testimony. Furthermore, it is clear from the record that the defendants\u2019 counsel failed properly to move to strike the incompetent testimony. See generally 1 Stansbury, N.C. Evidence \u00a7 27 (Brandis rev. 1973).\nFinally, 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\u2019 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\u2019s 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.\nFor the reasons stated, we find in the trial court proceedings.\nNo error.\nJudges PARKER and MARTIN (Harry C.) concur.",
        "type": "majority",
        "author": "MORRIS, Chief Judge."
      }
    ],
    "attorneys": [
      "Burke, Donaldson & Holshouser, by Arthur J. Donaldson and William D. Kenerly, for plaintiff appellee.",
      "Hudson, Petree, Stockton, Stockton & Robinson, by W. Thompson Comerford, Jr., and John F. Mitchell, for defendant appellants."
    ],
    "corrections": "",
    "head_matter": "LONNIE A. GRINER v. DALLAS W. SMITH and wife, WILMA SMITH, d/b/a SANDY HILL FARM\nNo. 7819SC978\n(Filed 6 November 1979)\n1. Animals \u00a7 2.2 \u2014 horse injured by another horse \u2014 vicious propensities \u2014 owner\u2019s negligence\nKnowledge by the owner of the vicious propensities of his animal is not always essential to a recovery in an action for injuries alleged to have been caused by the owner\u2019s negligence; rather, 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. Therefore, in an action to recover for the loss of plaintiff\u2019s horse which was destroyed after being seriously injured by another horse while both horses were in defendant\u2019s care, the trial court did not err in failing to require the jury to find that the horse which kicked plaintiff\u2019s horse had a vicious propensity and that defendants knew or should have known of this propensity.\n2. Evidence \u00a7 34.2\u2014 offer to compromise \u2014 evidence not prejudicial\nIn an action to recover for the loss of plaintiff\u2019s horse which was in defendant\u2019s care, the prejudicial effect of testimony concerning an offer to compromise was sufficiently dissipated by the trial court\u2019s prompt dismissal of the jury and subsequent instruction not to consider that testimony; furthermore, defendants cannot complain since their counsel failed properly to move to strike the incompetent testimony.\n3. Damages \u00a7 13\u2014 death of horse \u2014 expense of training another horse \u2014 evidence not prejudicial\nIn an action to recover for the loss of plaintiff\u2019s horse which was in defendant\u2019s care, evidence concerning the expense of training a horse to do those things which plaintiff\u2019s horse was able to do, though only remotely relevant to the value of the horse before its death, was not sufficiently prejudicial to require a new trial.\nAPPEAL by defendants from Lupton, Judge. Judgment entered 19 May 1978 in Superior Court, ROWAN County. Heard in the Court of Appeals 27 June 1979.\nPlaintiff initiated this action to recover for the loss of his American Quarter Horse mare, Black Lake Bars. Black Lake Bars suffered an injured leg and had to be \u201cput down\u201d on 19 May 1977. Defendants are the proprietors of a horse breeding business in Davie County called Sandy Hill Farm. Black Lake Bars was injured while at Sandy Hill Farm for siring by defendants\u2019 American Quarter Horse stallion, Mr. Rocket Chick.\nPlaintiff alleges that defendants impliedly agreed, as part of the arrangement for the breeding of Black Lake Bars, that they would use due care and skill in caring for Black Lake Bars while she was in their care and that they would redeliver the horse to plaintiff. They further agreed to return the $200 stud fee in the event the mare did not produce a live foal. He alleges defendants failed to redeliver the mare as contemplated by the agreement and failed to return the stud fee, resulting in his suffering damages in the amount of $10,200. In the alternative, plaintiff alleges that defendants impliedly promised to care for the mare in a careful and reasonable manner, but failed to do so in that they: placed the mare in a paddock with another mare whose nature and disposition were unknown to them; knew or should have known of the debilitating and destructive nature of the other mare; and after learning of the other mare\u2019s destructive nature, failed to separate the mares. Plaintiff alleges that as a proximate result of defendants\u2019 negligence, Black Lake Bars was kicked by the other mare and received a broken leg which required that Black Lake Bars be destroyed and which prevented her from producing a live foal, resulting in damages to defendant in the amount of $10,200.\nDefendants answered averring that, consistent with the established practice in the trade, they are not responsible for accident, sickness, or death to the plaintiff\u2019s mare. Furthermore, they aver that plaintiff elected the pasture care program for his mare rather than the more expensive stall care program which would have segregated plaintiff\u2019s mare from the other mares. Defendants allege that at all times they used reasonable care while boarding plaintiff\u2019s mare. In the alternative, defendants allege that plaintiff was contributorily negligent in the following respects: he failed to request that Black Lake Bars be moved to stall care; he knew or should have known of the vicious and aggressive tendencies of Black Lake Bars yet negligently failed to so inform defendants; and prior to the incident resulting in the necessity of having Black Lake Bars \u201cput down\u201d, services to the mare had been completed, but plaintiff refused to pick up the mare despite defendants\u2019 request that he do so. Defendants allege by way of counterclaim that plaintiff and defendant contracted orally for the transportation of plaintiff\u2019s mares. The reasonable value of those services, for which plaintiff allegedly is indebted to defendants, is $183. Defendants also allege that plaintiff owes defendants a veterinary fee of $15 for a cervical culture of Black Lake Bars for which defendants paid.\nPlaintiff testified at trial that Black Lake Bars was returned to Sandy Hill Farm in May of 1977 after an unsuccessful breeding with Mr. Rocket Chick during her foaling heat in early May of 1976. He stated that the stud fee was $200 per mare including transportation and that the boarding fee was $2 per day per mare. Another of plaintiff\u2019s mares, Black Friday, was also transported to Sandy Hill Farm for breeding in May of 1977. Neither mare had a foal at that time. On a Sunday in May of 1977, plaintiff visited defendants\u2019 farm and observed Black Lake Bars, Black Friday, and another outside mare, Dana\u2019s April, in a corral together. On that visit, plaintiff noticed an injury on the side of Black Lake Bars which he described as \u201cbulging out the size of a football\u201d. He called to Mr. Smith\u2019s attention the fact that Dana\u2019s April had shoes. Smith responded, \u201cYes, that\u2019s dangerous.\u201d Smith also allegedly commented, \u201cWell, they are having a time getting used to each other.\u201d He testified that Mr. Smith had told him that he couldn\u2019t keep Dana\u2019s April in a box stall because she would tear it up. He testified that defendants did not keep Black Lake Bars in a separate box stall as they had in May of 1976 when she had a foal by her side. He assumed she would receive the same accommodations when she was returned for breeding. The next Thursday, 19 May 1977, plaintiff was called by Mrs. Smith and told to come to the farm, that his horse had been involved in a terrible accident. Mrs. Smith already had contacted a veterinarian. When plaintiff arrived at the farm, Mrs. Smith told him that Dana\u2019s April had kicked Black Lake Bars and broken her leg. One of her back legs was broken just below the hollow. All three bones were broken, and the leg was dangling by the skin only. The veterinarian was of the opinion that the leg would never heal and suggested that Black Lake Bars be put to sleep, and this was done. Plaintiff expressed his opinion that immediately prior to the injury in 1977, Black Lake Bars was worth $8,000 to $10,000.\nThe plaintiff testified extensively concerning his experience with breeding and raising horses and explained the terminology involved in horse breeding. He testified that he purchased Black Lake Bars in 1975 at an auction sale for $400. At that time she was in foal and suffering from the mange. She stood 14-2 hands and was a registered quarter horse. He testified that at other quarter horse farms the brood mares were commonly kept in separate stalls even when they did not have a colt by their side. He stated that Sandy Hill Farm offered the box stall plan \u00e1nd asserted that he had never heard of Sandy Hill Farm offering any other plan. He denied observing any incidents of fighting among the three mares which were pastured together.\nDefendant Wilma Smith testified that her farm offers stall or pasture care for mares. A mare with a foal is automatically placed in a stall to protect the foal. The stall care is more expensive. Other mares are pastured together. She denied that Dana\u2019s April was an aggressive mare. Dana\u2019s April also was boarded at defendant\u2019s farm in April of 1976, and at that time showed no aggressive behavior. Mrs. Smith stated that she did not recall a knot on Black Lake Bars the Sunday of plaintiff\u2019s visit, and she did not overhear any conversation concerning an injury to plaintiff\u2019s horse.\nMrs. Smith described the events leading up to her discovery of Black Lake Bars\u2019 injury. The three mares were placed into a six-acre pasture. They peacefully were standing parallel to the fence close to where Wilma Smith was tending to some foals and mares \u2014 Black Lake Bars was in the middle, Black Friday behind, and Dana\u2019s April ahead of her six to eight feet away. Wilma Smith turned away and started into the barn when she heard a squeal. She went back through the barn and opened the door onto the horses\u2019 pasture when she observed the injured horse about 20 feet from where she was last seen standing. The veterinarian and the plaintiff were called immediately.\nDallas Smith denied observing any aggressive behavior among the horses. He also denied that plaintiff had mentioned there being any knots on Black Lake Bars the Sunday he visited. He also denies stating that Dana\u2019s April could not be kept in a box stall. With regard to the expense of transporting plaintiff\u2019s mares, Dallas Smith testified that plaintiff promised to pay for hauling the horses. When the first breeding was unsuccessful, plaintiff offered to pay, but defendants refused to take any money. After the May 1977 incident, plaintiff did not again offer to pay for the transportation, and defendants decided that since a lawsuit had been filed they should seek compensation for the transportation.\nThe veterinarian who treated Black Lake Bars described the injury and explained that the arteries in the lower leg were so damaged that blood circulation had been destroyed, and surgery might be unsuccessful. He had the horse \u201cput down\u201d at plaintiff\u2019s direction. He further testified that it was not unusual to keep outside mares pastured together. Joan Backhaus, part owner of an established breeding farm, testified that the custom of the trade is to put brood mares in pastures together with other such mares. Lawrence Ross, a National Director of the American Quarter Horse Association, testified that brood mares are kept in pastures and that mares with foals are often also kept in pasture with other mares which have foals. John Shoaf, the owner of Dana\u2019s April, denied that she was an aggressive or vicious mare. He stated that she had often been around strange horses and to his knowledge never had kicked any of them. He denied that she could not be kept in a stall.\nThe case was sent to the jury upon instructions by the trial court on two issues: (1) \u201cWas the plaintiff\u2019s horse, Black Lake Bars, injured by the negligence of the defendants?\u201d (2) \u201cWhat amount of damages, if any, is the plaintiff entitled to recover?\u201d The jury answered the first issue in the affirmative and awarded plaintiff $3,225 in damages. Defendants appeal from the entry of judgment on the verdict, assigning error to rulings and instructions by the trial court.\nBurke, Donaldson & Holshouser, by Arthur J. Donaldson and William D. Kenerly, for plaintiff appellee.\nHudson, Petree, Stockton, Stockton & Robinson, by W. Thompson Comerford, Jr., and John F. Mitchell, for defendant appellants."
  },
  "file_name": "0400-01",
  "first_page_order": 428,
  "last_page_order": 438
}
