William T. Connor, and Hardie Scott, Philadelphia, for appellant.
Benjamin Goldman, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.
[ 167 Pa. Super. Page 151]
The record in this case presents a rather anomalous situation. Plaintiff recovered a verdict for damages sustained as a result of having been attacked and bitten by a dog owned by defendant, the proprietress of a taproom. Although the suit was based and tried by plaintiff on the legal principle of the care which must be exercised by an innkeeper to see that his patrons or guests are protected from injury, it was defended in the court below, and argued here, as though it had been predicated on the theory that defendant harbored a vicious dog with knowledge of its vicious dog with fact that plaintiff was attacked and bitten by the dog is not denied, but it is contended that the attack was provoked by the conduct of plaintiff toward an animal of a 'gentle nature.'
Plaintiff testified that in the forenoon of June 28, 1943, he entered defendant's taproom at 815 Vine Street, Philadelphia, to get a glass of beer. Before drinking the beer, he asked to be directed to the men's room. As he neared the room he heard the sound of puppies nearby, and as he was opening the door he was suddenly set upon and bitten by the dog on the calf of his left leg.
While admitting that plaintiff was bitten, defendant offered testimony that the occurrence did not take place at the entrance to the men's room, but in the back yard, which plaintiff was about to use for the very purpose of which he said he was about to enter the men's room; whereupon defendant's teen-age daughter, who was in the back yard washing the dog, screamed. Plaintiff then, according to her testimony, kicked the dog, provoking the attack which resulted in his injury. Her testimony that
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plaintiff was not molested in the taproom was corroborated by that of the bartender and another patron.
Plaintiff immediately left the premises without touching his beer and was taken in a patrol wagon to Hahnemann Hospital. The officer in charge of the patrol wagon testified that the man's left leg was bleeding, and in answer to defense testimony that plaintiff was intoxicated, he testified that he definitely was not. He further testified that he took the man to the hospital between 11 and 12 noon. It appeared from the hospital record that he was not admitted until 8:35 p. m. Plaintiff, however, testified that instead of that being the time of his admission, it was approximately the time of his discharge. His wife testified that he got home about 9 p. m.
In our opinion the case was clearly for the jury. The controlling principle relied upon by plaintiff is clearly stated in Rommel v. Schambacher, 120 Pa. 579, 582, 11 A. 779, 6 Am.St.Rep. 732: 'Where one enters a saloon or tavern, opened for the entertainment of the public, the proprietor is bound to see that he is properly protected from the assaults or insults, as well of those who are in his employ, as of the drunken and vicious men whom he may choose to harbor.' See, also, Jefferson v. Young Men's Christian Association, 354 Pa. 563, 47 A.2d 653; Ritchey v. Cassone, 296 Pa. 249, 145 A. 822; Lyttle v. Denny, 222 Pa. 395, 71 A. 841, 20 L.R.A., N.S., 1027, 128 Am.St.Rep. 814, 15 Am.Cas. 924; Hunter v. Hotel Sylvania Co., 153 Pa. Super. 591, 34 A.2d 816.
Paraphrasing the aforesaid principle, the learned judge of the court below said: 'If there is liability for acts of human beings who act like dogs then there should be no question about the liability for acts of dogs, particularly when they belong to the innkeeper.' He added: 'It was clearly for the jury to decide whether the defendant had ...