In Herring v. Schingler, 101 S.W.2d 394 (Tex. Civ. App. – Beaumont 1937, writ dism’d), plaintiffs’ seven-year-old daughter was playing in her yard when she was bitten by a stray dog and suffered severe injuries.
J.E. Herring and his wife, for themselves and as next friends of their seven-year-old daughter, sued Mr. and Mrs. Joe Schingler for damages as a result of an attack by a dog allegedly owned by the defendants. The plaintiffs pleaded to theories of recovery: strict liability and negligence. The case was tried to a jury, and at the conclusion of the evidence the trial court directed a verdict in favor of defendants. Plaintiffs appealed. The judgment of the lower court was affirmed.
Defendants lived about four blocks away from plaintiffs, and owned a two and one-half year old Chinese Chow named Chink, which they raised from a puppy. On the date in question defendant, Joe Schingler, was treating Chink for mange. Chink was in a tub and was restrained with a rope around his neck. As the defendant was drying the dog, the dog struggled to escape, “and in his struggle scratched a small place on Mr. Schingler’s hand with his teeth.” Id. at 395. The dog slipped his head out of the noose and escaped. The dog did not immediately leave the defendants’ yard. He played around in the yard for some time before leaving. The child was bitten after the dog wandered away from the defendants’ home.
With respect to the strict liability claim, plaintiffs alleged the dog had a vicious disposition, had bitten other people [the defendant’s hand], and that the defendants knew of the dog’s propensity to bite people.
Plaintiffs alleged multiple acts of negligence. First, plaintiffs alleged the mange treatment irritated the dog and that defendants failed to tie the dog or confine him in a space from which he could not escape, and that still smarting from the effect of the mange treatment, the dog attacked the child. Plaintiffs also alleged the defendants were negligent by permitting the dog to leave their property after it had bitten the defendant. Finally, plaintiffs alleged defendants were negligent for failure to warn others about the dog.
In directing a verdict for the defendants, the trial court ruled the evidence failed to show the defendants owned the dog that bit the child, that the dog was vicious, or that the defendants were negligent.
The plaintiffs failed to show the dog was vicious. Multiple witnesses testified that they had known Chink from the day defendants brought him into their home, and that the dog was not a vicious dog. Mrs. Schindler maintained an office in her home and the dog spent most of his time in the office and was petted by her clients. The court stated: “[i]n order to show the defendant’s knowledge of the animal’s habits, testimony may be introduced as to the dog’s reputation for being vicious, and his tendency to bite mankind.” Id. at 395.
The accidental bite. The court characterized the bite to the defendant by Chink as accidental: “[a]fter the treatment, while Mr. Schingler was drying him [Chink] with a towel, Chink struggled to escape, and in his struggle scratched a small place on Mr. Schingler’s hand with his teeth.” Id. at 395. In reaching the conclusion that the dog was not vicious, the court characterized the bite to the defendant’s hand as “a result of an accident, and not as a vicious act of the dog in attempting to bite him.” Id. at 395.
The court did not discuss the issue of ownership other than to say that “in our judgment, the evidence was not sufficient to support a finding on that issue in favor of [plaintiffs].” Id. at 396.