                                IN THE COURT OF APPEALS
                                      AT KNOXVILLE
                                                                        FILED
                                                                          October 2, 1998

                                                                    Cecil Crowson, Jr.
KAREN LYNN PILCHER and                          )    ANDERSON COUNTYAppellate C ourt Clerk
HUSBAND KEITH A. PILCHER                        )    03A01-9710-CV-00482
                                                )
       Plaintiffs-Appellees                     )
                                                )
                                                )
       v.                                       )    JUDGE
                                                     HON. JAMES B. SCOTT, JR.,
                                                )
                                                )
A. L. MONEYMAKER, JR., and                      )
wife ROBERTA MONEYMAKER                         )
                                                )
       Defendants-Appellants                    )    AFFIRMED AND REMANDED




MICHAEL W. RITTER OF OAK RIDGE FOR APPELLANTS

HAROLD P. COUSINS, JR., and GEORGE H. BUXTON, III, OF OAK RIDGE FOR
APPELLEES




                                 OPINION




                                                                     Goddard, P.J.



               A. L. Moneymaker, Jr., and his wife Roberta Moneymaker appeal a judgment

rendered by the Trial Court against them in the amount of $36,000 as a result of personal injuries

sustained by Karen Lynn Pilcher and loss of consortium of her husband, Keith A. Pilcher. The

suit arose as a result of a collision occurring on September 3, 1994, about 10:00 a.m., between a

female dog named Spec, alleged to be owned by Mr. and Mrs. Moneymaker, and a bicycle being

ridden by Mrs. Pilcher on Dutch Valley Road in Anderson County.
               The Moneymakers raise the following five issues:



       A.   WHETHER OR NOT THERE WAS AN EFFECTIVE WAIVER OF A
       JURY TRIAL?

       B.   WAS THERE EVIDENCE, FACTUALLY OR LEGALLY TO
       PREDICATE LIABILITY ON DEFENDANT ROBERTA MONEYMAKER?

       C.   DID THE COURT ERR IN ALLOWING EVIDENCE OF HABIT OR
       ROUTINE?

       D.   IS THERE A LEGAL CAUSE OF ACTION AGAINST THE
       DEFENDANTS?

       E.   ARE THE FACTS ADDUCED AT TRIAL CONSISTENT WITH THE
       JUDGMENT?



               The theories of the parties may be succinctly stated as follows. The Plaintiffs

contend that the Defendants' dog, as it had on many previous occasions, ran into Dutch Valley

Road and then into a bicycle being ridden by Mrs. Pilcher, causing her to fall and injure herself.

The Defendants insist that the dog was never in the road on the occasion of Mrs. Pilcher's

accident, but was under a tractor attached to a hay conditioner which was being serviced by Mr.

Moneymaker.



               The Trial Court initially entered a memorandum opinion and, thereafter, in

response to a motion for a statement of facts and conclusions of law, issued a second

memorandum opinion:



                               FIRST MEMORANDUM OPINION

                                            OPINION

               The Court has to decide the liability, if any, of a dog owner and the facts
       surrounding a bicycle accident. Plaintiffs claim that the negligence of the dog
       owner was the proximate cause of the accident. The owner of the dog allege that
       the dog did not go onto the highway (the site of the bicycle accident) until after
       the accident had occurred and the dog was not allowed to run at large.



                                                 2
         Based upon all of the proof, the Court finds that the factual cause of the
accident was the failure of the owner to prevent the dog from running at large and
failure to prevent the dog from running onto the highway.

        However, the legal cause, or proximate cause, of this accident and
resulting injury is to be shared between the parties by the Court finding a
proportional degrees of fault between them.

       The total damages awarded is $60,000 but the amount of damages will be
reduced by that degree of fault assigned to plaintiff.

        The Court finds the defendant proximately responsible for 60 percent of
the fault of the accident and the plaintiff responsible for 40 percent of the fault of
the accident.

       The clerk will send a copy of this Opinion to the respective attorneys.



                      SECOND MEMORANDUM OPINION

                            FINDINGS OF FACT AND
                            CONCLUSIONS OF LAW


                               FINDINGS OF FACT

        The Court finds that the Plaintiff, Karen Pilcher, was lawfully riding her
bike on a public way, to-wit: Dutch Valley Road, on September 3, 1994 in
Anderson County, Tennessee near the real property and home of the Defendants,
Mr. & Mrs. A. L. Moneymaker, Jr. Defendant’s dog was within sight of the
owner and within voice command of the owner and was allowed to run at large
onto the public highway. The Court finds that the dog had run onto the highway
on previous occasions and had an affinity to bicycle riders and had chased the
same riders on previous occasions near or at the same location on the highway
where the accident occurred. The Court finds that the plaintiff had actual
knowledge and notice of the propensity of the dog to chase bicycles and that the
plaintiff’s failure to stop or dismount or avert the dog was a failure to use due care
for her own safety and therefore, she was Forty Percent (40%) at fault in the
accident. The Court finds plaintiff knew that the dog was a hazard for bikers.
The plaintiff Keith Pilcher has a valid claim for his loss of consortium. The Court
further finds that the total damages suffered by plaintiffs are Sixty Thousand
Dollars ($60,000.00).


                             CONCLUSIONS OF LAW




                                          3
                    The Court, in consideration of Tennessee Code Annotated §44-8-4091 and
            the applicable common law is of the Opinion that defendants’ dog was running at
            large in violation of Tennessee Code Annotated §44-8-409 and that the plaintiffs
            are beneficiaries of the statute. Additionally, the Court is of the Opinion that the
            defendants had prior notice of their dog’s propensity to run at large on the
            roadway adjacent to defendants’ real property and therefore are negligent at
            common law for the injuries of plaintiffs in accordance with Alex v. Armstrong,
            385 S.W.2D 110 (Tenn. 1964). Therefore, the Court finds the defendants, as
            owners of the dog, to be proximately responsible for Sixty Percent (60%) of the
            fault of the accident and the resulting injuries to plaintiffs. The Court holds
            plaintiffs proximately responsible for Forty Percent (40%) of the fault of the
            accident and the resulting injuries for plaintiffs. The total damage awarded is
            Sixty Thousand Dollars ($60,000.00), reduced by Forty Percent (40%) or Twenty-
            Four Thousand Dollars ($24,000.00) for that degree of fault assigned to plaintiffs.
            Therefore, the damages suffered by plaintiffs for which defendants, jointly and
            severally, are responsible is Thirty-Six Thousand Dollars ($36,000.00).

                   The clerk will send a copy of this Findings of Fact and Conclusions of
            Law to the respective attorneys.



                               The rule relative to the first issue is Rule 39 of the Tennessee Rules of Civil

Procedure which, as pertinent to this appeal, provides the following:



                                                                   RULE 39
                                                        TRIAL BY JURY OR BY THE COURT

                         39.01 By Jury.-- When trial by jury has been demanded as provided in
                Rule 38, the action shall be designated upon the docket as a jury action. The trial
                of all issues so demanded shall be by jury, unless (a) the parties or their attorneys
                of record, by written stipulation filed with the court or by oral stipulation made in
                open court and entered in the record, consent to trial by the court sitting without a
                jury or (b) the court upon motion or of its own initiative finds that a right of trial
                by jury of some or all of those issues does not exist under the Constitution or
                statutes of the state of Tennessee.




            1
                               T h e T r i a l C o u r t o b v i o u s l y                            m e a n t T . C . A .                   4 4 - 8 - 4 0 8      w h i c h ,    a s
p e r t i n e n t        t o     t h i s a p p e a l , p r o v i d e s a s                            f o l l o w s :

                               4 4 - 8 - 4   0 8   .    D o   g   s n      o t      a l l    o    w e d      a t        l a r       g e - -        E x c e p t i o n .     - - I t i s
            u    n   l a w f   u l f o r       a   n y p e    r   s o n      t   o a l      l    o w a         d   o   g b      e     l o n g i   n g t o o r u          n d e r t h e
            c    o   n t r o   l o f s       u c   h p e r    s   o n ,      o   r t h      a    t m a      y      b   e h      a     b i t u a   l l y f o u n d        o n
            p    r   e m i s   e s o c c     u p   i e d b    y     t h   e      p e r s    o    n , o      r      i   m m e    d     i a t e l   y u n d e r t h        e c o n t r o l
            o    f     s u c   h p e r s     o n   , t o      g   o u     p o    n t h      e       p r e   m i    s   e s      o     f a n o     t h e r , o r u        p o n a
            h    i   g h w a   y o r u       p o   n a p      u   b l i   c      r o a d         o r s      t r    e   e t .




                                                                                                       4
                     It appears that a jury demand was made both in the complaint and in the answer,

and there is nothing in the transcript of the hearing to show that this demand was waived by the

parties. However, there are post-trial affidavits filed by both counsel for the Pilchers and then-

counsel for the Moneymakers to that effect.



                     Counsel for the Defendants, however, insists that the rule is mandatory and,

absent a written stipulation or oral stipulation made in open court, the Defendants are entitled to

a new trial.



                     In cases such as this where affidavits of counsel for the parties, which are a part of

the record although entered subsequent to the trial of the case, clearly show the jury was waived,

we are not prepared to require strict adherence to the rule. To do so, in our view, would be to

exalt form over substance.



                     As to the second issue, the proof shows that Mr. Moneymaker testified that the

dog was his dog, and Mrs. Moneymaker that the dog was Mr. Moneymaker's when he was

present and hers when he was not. The problem with this issue is that a reading of the record

persuades us that it was assumed by the parties during the trial that it was both Mr. and Mrs.

Moneymaker's dog. Indeed, many of the questions by counsel for the Plaintiffs and the

Defendants speak of "the Moneymakers' dog." This, coupled with the fact that there was no

advocacy of this defense during trial nor in closing argument by the Defendants' former counsel,

nor even specifically in the motion for new trial filed by their present counsel,2 persuades us that

this was not an issue below.




          2
                      1 1 .     T h e r e i s n o p r o o f o f     a n y b r e a c h o f d u t y b y t h e D e f e n d a n t ,
R o b e r t a M o n e y m a k e r , n o r a n y v i o l a t i o n   o f a n y l a w , o r s t a t u t e , i f a p p l i c a b l e ,
b y t h e D e f e n d a n t R o b e r t a M o n e y m a k e r .

                                                                    5
                 With regard to issue C, there is considerable proof by bicyclists riding with the

Pilchers on the occasion of the accident, as well as many other bicyclists who traversed Dutch

Valley Road both before and after the accident, that the dog in question repeatedly chased

bicycles upon the roadway.



                 The Rule of Evidence relied upon by the Defendants is Rule 406, which provides

the following:



              Rule 406. Habit; routine practice. -- (a) Evidence of the habit of a
       person, an animal, or of the routine practice of an organization, whether
       corroborated or not and regardless of the presence of eye-witnesses, is relevant to
       prove that the conduct of the person, animal, or organization on a particular
       occasion was in conformity with the habit or routine practice.

               (b) A habit is a regular response to a repeated specific situation. A routine
       practice is a regular course of conduct of an organization.



                 Our understanding of the Trial Judge's ruling on the admissibility of the evidence

regarding the dog's frequent forays onto Dutch Valley Road, is that he was admitting the

evidence for the purpose of showing the knowledge of the Defendants regarding the dog's

activities rather than to prove that the dog acted in this manner on this occasion.



                 In conclusion, we point out that the evidence that it was the Moneymakers' dog

which caused the accident is well-nigh conclusive.



                 We say this because of the following testimony of the investigating officer when

relating his questioning of Mr. Moneymaker regarding the accident:



                 Q      Did you question Mr. Moneymaker about the accident?

                 A.     Yes, sir.

                 Q.     What did he tell you?

                                                  6
                  A.      That the dog that was in the tractor3 was the dog that they were
          talking about, and that it was his dog, and that the dog had run up into the road
          when the bicycle riders came by.



                     At trial, however, and during his discovery deposition Mr. Moneymaker testified

that the dog was under his tractor on the occasion of the accident. It thus appears clear that the

Trial Court discredited his testimony and accredited that of the other witnesses and the

investigating officer.



                     As to issues D and E, our review of the record persuades us that the Trial Court

should be affirmed under Rule 10(a) of this Court.



                     For the foregoing reasons the judgment of the Trial Court is affirmed and the

cause remanded for collection of the judgment and costs below. Costs of appeal are adjudged

against Mr. and Mrs. Moneymaker and their surety.



                                                               _______________________________
                                                               Houston M. Goddard, P.J.


CONCUR:



________________________________
Herschel P. Franks, J.



________________________________
Don T. McMurray, J.




          3
                    M r . M o n e y m a k e r t e s t i f i e d t h a t a f t e r   t h e a c c i d e n t S p e c w e n t t o   t h e
s c e n e o n t h r e e s e p a r a t e o c c a s i o n s , b u t r e t u r n e d   t o h i m w h e n h e c a l l e d h e r     a n d
t h a t o n t h e l a s t o c c a s i o n h e p u t t h e d o g i n t h e           c a b o f t h e t r a c t o r .

                                                                   7
