|||THE COURT OF APPEALS OF THE STATE OF MISSOURI EASTERN DISTRICT
|||Case Number: ED75956
|||May 16, 2000
|||MELISSA EGENREITHER, A MINOR, BY AND THROUGH HER NEXT FRIEND AND NATURAL
FATHER, MICHAEL EGENREITHER, AND MICHAEL EGENREITHER, INDIVIDUALLY
|||Counsel for Appellant: Martin J. Buckley Counsel for Respondent: Robert
|||The opinion of the court was delivered by: Lawrence G. Crahan, Judge
|||Appeal From: Circuit Court of City of St. Louis, Hon. Jimmie Edwards
|||Opinion Vote: AFFIRMED AND REMANDED. Russell, C.J. and Crist, J., concur.
|||Sandra Carter ("Defendant") appeals the trial court's order
granting a new trial after the jury rendered a verdict in her favor on Melissa
Egenreither's ("Plaintiff") claim for personal injuries sustained
when she was bitten by Defendant's dog. We affirm.
|||Plaintiff, then thirteen years old, was walking home through the alley
behind Defendant's home in the City of St. Louis. Plaintiff saw Defendant's
son come out of the back yard into the alley through a gate in the chain
link fence. Defendant's dog, Neno, a mixed breed of German Shepherd and
Rotweiller, came through the gate shortly thereafter. When Plaintiff was
five or six feet away from the gate, the dog jumped up and bit her on the
arm. It is undisputed that Defendant was the owner of the dog at the time
of the incident and that the dog was not on a leash.
|||Plaintiff submitted her case on the theory that Defendant was in violation
of section 10.04.220 of the revised code of the City of St. Louis and that
such violation constituted negligence per se. The ordinance provides:
|||Leashing of Dogs.
|||No owner of any dog shall permit such dog to be found at large on the
streets of the City of St. Louis or in any public place or on another person's
private property, unless such dog is on a leash, not longer than six feet
in length and held by or under control of a responsible person so as to
effectively prevent it from biting any person or animal. All dogs are prohibited
from running or being at large unless under restraint as described above.
|||Plaintiff's verdict director, as instruction number 5, provided:
|||Your verdict must be for plaintiff, Melissa Egenreither, and against defendant,
Sandra Carter, if you believe:
|||First, that Sandra Carter owned the dog in question, and
|||Second, that the dog owned by Sandra Carter was on property other than
that owned by defendant, and
|||Third, that the dog owned by Sandra Carter was not restrained by a competent
|||Fourth, as a direct result of such conduct, plaintiff, Melissa Egenreither,
|||Over Plaintiff's timely objection, the trial court also gave instruction
number 6, tendered by Defendant, which provided:
|||Your verdict must be for defendant if you believe that Neno was at large
on the streets of the City, or in any public place while not on a leash
but defendant was not thereby negligent. *fn1
|||After the jury returned a verdict in Defendant's favor, Plaintiff timely
filed her motion for a new trial claiming, inter alia, that Defendant's
converse instruction was improper under the circumstances and was a misstatement
of the law. The trial court agreed and sustained Plaintiff's motion for
a new trial. Defendant appeals, claiming her converse instruction correctly
stated the law and that, even if the instruction was erroneous, Plaintiff
failed to make a submissible case. We disagree.
|||We will first address Defendant's claim that Plaintiff failed to make
a submissible case. Defendant claims Plaintiff failed to show that Defendant
"permitted" the dog to be at large while not on a leash because
the undisputed evidence shows she was not at home when the dog escaped from
her yard after her child opened the gate. Defendant urges that the requirement
that an owner not "permit" the dog to run loose implies that the
owner must have knowledge or affirmatively consent to the dog running loose.
|||The term "permit" means "to give permission; to authorize;
to allow by silent consent, or by not prohibiting . . ." Webster's
New Universal Unabridged Dictionary 1336 (2d ed. 1983). It is in the latter
sense that the term is used in the ordinance at issue. The ordinance is
not concerned with the owner's knowledge of the violation. Rather, the ordinance
imposes upon a dog owner the affirmative obligation to ensure that the dog
either remains in the yard or is restrained on a leash under the control
of a responsible person "so as to effectively prevent [the dog] from
biting any person or animal." Defendant relies on Monteer v. Prospectors
Lounge Inc., 821 S.W.2d 898, 900 (Mo. App. 1992) and cases from other jurisdictions
for the proposition that there must be a showing of some element of knowledge,
consent or fault to make out a violation of a leash law. See, e.g., City
of Champaign v. Auler, 442 N.E.2d 330, 332 (Ill. App. 1982); Lange v. Minton,
738 P.2d 576, 577 (Or. 1987). Monteer is readily distinguishable. In Monteer,
the plaintiff sought to hold a bar owner liable on a theory of negligence
per se for violating an ordinance providing that no liquor licensee or employee
shall "allow" disorderliness or brawls upon the premises. The
plaintiff, whose husband was murdered in the parking lot of a bar some time
after a brawl had been broken up by the bartender, sought to hold the owner
liable on a theory of negligence per se for failing to call the police.
The court held that the plaintiff had not proven negligence per se because
the evidence showed that the bartender had been actively involved in trying
to end the fracas and had not acquiesced in the conduct. 821 S.W.2d at 900-01.
|||Monteer is distinguishable on two grounds. First, unlike the ordinance
in this case, the ordinance did not establish an affirmative obligation
to prevent brawls; the licensee's obligation was to promptly attempt to
stop them if they occurred. More importantly, the ordinance in Monteer dealt
with what was required of licensees in response to the actions taken by
third parties not under the licensee's immediate control. In contrast, a
leash law addresses what is required of dog owners with respect to an instrumentality
they are affirmatively required to keep under control. Violation of the
liquor license ordinance thus requires some sort of knowledge or acquiescence;
violation of a leash law does not.
|||We also find the authorities from other states unpersuasive. Our review
of Missouri cases persuades us that Missouri courts have never required
a showing of the owner's knowledge or acquiescence to make out a claim of
negligence per se for violation of a leash law. Shobe v. Borders, 539 S.W.2d
330, 332 (Mo. App. 1976); Jensen v. Freely, 691 S.W.2d 926, 929 (Mo. App.
1985). Point denied.
|||We now turn to Defendant's contention that the trial court erred in granting
a new trial because her converse instruction was supported by the evidence
and in proper form as reflected in MAI 33.05(2). In reviewing a trial court's
award of a new trial because of an erroneous instruction, we determine if
the instruction is erroneous as a matter of law upon the record presented,
not as a matter within the discretion of the trial court. State ex rel.
Missouri Highway and Transp. Com'n v. Mertz, 778 S.W.2d 366, 368 (Mo. App.
1989). If the instruction is found to be erroneous, we defer to the discretion
of the trial court, absent a showing of an abuse of this discretion, because
the trial court has the best opportunity to determine the effect of any
error. Whiting v. United Farm Agency, Inc., 628 S.W.2d 407, 409 (Mo. App.
|||Defendant relies on Wilson v. Shumate, 296 S.W.2d 72, 75 (Mo. 1956), MacArthur
v. Gendron, 312 S.W.2d 146, 150 (Mo. App. 1958) and Bentley v. Crews, 630
S.W.2d 99, 105 (Mo. App. 1991), for the proposition that the courts have
always allowed defendants in negligence per se cases to explain the reasons
for noncompliance with the statute and to hypothesize that explanation for
the jury in a converse instruction. Defendant urges that her explanation
that she was not at home and the absence of any evidence that the dog had
previously escaped the yard justified submission of her converse instruction
patterned after MAI 33.05(2). *fn2 We
find that Defendant's authorities do not support her sweeping generalization.
|||As cautioned in the Notes on Use No. 1 following MAI 33.05(2), a defendant
is only entitled to submit this type of converse instruction if the plaintiff
submits on negligence per se "and only if it is supported by the evidence
and the facts show that legal justification or excuse is applicable."
In other words, a defendant is not entitled to submit a converse instruction
patterned on MAI 33.05(2) regardless of the nature of her explanation for
failing to conform to the statute. The defendant may submit the converse
only if the explanation constitutes a legal justification or excuse. In
general, legal justification or excuse requires proof of circumstances beyond
the defendant's control and not the result of the defendant's negligence
which justify or excuse strict compliance with the statute.
|||The cases relied upon by Defendant are consistent with this view. In Wilson
v. Shumate, for example, the plaintiff sought to hold the defendant liable
on a theory of negligence per se for violation of an ordinance requiring
all motor vehicles to have two sets of adequate brakes in good working order.
296 S.W.2d at 75. The plaintiff sustained injuries when the foot brake failed.
Id. at 74-75. The court acknowledged that the plaintiff made a submissible
case of negligence per se but noted that the defendant was entitled to offer
proof of legal excuse or avoidance for his failure to have observed a duty
created by the statute which the court defined as "proof that an occurrence
wholly without his fault made compliance with the statute impossible at
the moment complained of and which proper care on his part would not have
avoided." Id. at 75. Upon submission of such proof, the defendant would
be entitled to have the jury determine if he was negligent in failing to
comply with the statute. *fn3 Id.
|||Likewise in MacArther v. Gordon, the court observed that considerations
of safety, emergency conditions, or impossibility of compliance may constitute
valid excuses for noncompliance with a statute. 312 S.W.2d at 150 (citing
Lix v. Gastain 261 S.W.2d 497 (Mo. App. 1953); Lewis v. Zagata 350 Mo. 446,
116 S.W.2d 541 (Mo. 1942); and Politte v. Miller, 301 S.W.2d 839 (Mo. App.
1957). Cowell v. Thompson similarly recognized that proof that the defendant's
actions were undertaken in response to an emergency may justify submission
of an instruction hypothesizing justification or excuse. 713 S.W.2d 52,
54. (Mo. App. 1986).
|||In the instant case, Defendant's explanation for her failure to conform
to the statute did not constitute a legal justification or excuse that the
law will recognize as a defense. The fact that Defendant was not at home
when the incident occurred did not relieve her of her affirmative obligation
imposed by the statute to ensure that the dog either remained in her yard
or was restrained on a leash by a responsible person so as to prevent it
from biting anyone. Compliance with the ordinance was not rendered impossible
by any circumstance beyond Defendant's control. Indeed, the evidence showed
that Defendant had a dog pen that could have been used to restrain the dog
when necessary to open the gate. Because Defendant's explanation did not
constitute a legal justification or excuse, it follows that the trial court
did not err in granting Plaintiff's motion for a new trial.
|||Affirmed and remanded for a new trial consistent with this opinion.
|||Separate Opinion: None
|||*fn1 . Instruction number 7 defined
"negligence" in accordance with MAI 11.02.
|||*fn2 . Defendant's converse instruction
tracked the overall form of MAI 33.05(2) but erroneously omitted the affirmative
defense tail required by the caution in the Notes on Use. Plaintiff did
not object to the form of the instruction.
|||*fn3 . Although we resolve this case
on the basis that Defendant's evidence did not establish a legal justification
or excuse to support the submission of an instruction patterned after MAI
33.05(2), we note that the pattern instruction itself may not properly present
the issue to the jury. Although the Notes on Use permit defendant to submit
a converse upon offering evidence of a legal justification or excuse, MAI
33.05(2) as drafted does not require that the jury find that the facts constituting
the legal justification or excuse actually exist -- i.e., that the defendant
was responding to an emergency, circumstances rendered compliance impossible,
compliance would have increased the danger, etc. As drafted, MAI 33.05(2)
merely requires the jury to find the defendant exercised ordinary care or
the highest degree of care. Where the statute or ordinance imposes an affirmative
duty beyond ordinary care, as the statute does in this case, submission
of legal justification in the form suggested in MAI 33.05(2) would appear
to impermissibly substitute ordinary care for the standard of care established
by the legislature. Moreover, under Wilson, the defendant must establish
both circumstances beyond her control and freedom from negligence. MAI 33.05(2)
only submits the latter.
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