Opinion
Hackethal, McNeill & Aucoin, George C. Aucoin, Lakewood, for plaintiffs-appellees.
Robinson & Henderson, Jack D. Henderson, Denver, for defendants-appellants.
Before COYTE, DWYER and PIERCE, JJ.
DWYER, Judge.
Plaintiff, Danny Earl Reynolds, age thirteen, was bitten by a Malemute Husky dog owned by the defendants. Danny, and his father, Roland E. Reynolds, brought this action to recover damages for the injuries sustained. The court tried the case without a jury, found for plaintiffs, assessed Danny's damages in the amount of $3,000, and assessed the father's damages in the amount of $3,239. Defendants have appealed the judgment entered on these findings. They assert that the evidence does not support the court's findings on the issue of liability and that the evidence does not support the amount of damages awarded the father.
In order for plaintiffs to hold defendants liable for injuries caused by the dog, it was necessary for them to establish that the dog was vicious, that the defendants knew it, and that the dog bit and injured Danny without any neglect or fault on his part. See Swerdfeger v. Krueger, 145 Colo. 180, 358 P.2d 479; Barger v. Jimerson, 130 Colo. 459, 276 P.2d 744; Melsheimer v. Sullivan, 1 Colo.App. 22, 27 P. 17. Defendants do not assert that Danny's injuries were caused by trespass, negligence or fault on his part. They contend, however, that the evidence was insufficient to establish that the dog was vicious or that they knew of such propensities. The evidence establishes that defendants' dog bit another child on a previous occasion. Defendants knew of this attack but contended that it had been provoked by the child. The evidence on this question was in conflict. The court resolved the disputed factual questions in favor of the plaintiffs and found that the dog was vicious and that the defendants knew of the dog's vicious propensities. Whether the dog had vicious propensities, and whether the owners knew or had notice of the dog's vicious propensities posed controverted issues of fact to be resolved by the trier of facts. See Davis v. Roberts, 155 Colo. 387, 395 P.2d 13. The credibility of the witnesses, the sufficiency, probative effect, and weight of all the evidence, and the inferences and conclusions to be drawn therefrom, were all within the province of the trial court whose conclusions will not be disturbed on review unless so clearly erroneous as to find no support in the record. A court's findings based upon a choice between two plausible views of the weight of the evidence or upon a choice between conflicting inferences from the evidence is not clearly erroneous. Thiele v. State, 30 Colo.App. 491, 495 P.2d 558. There is sufficient evidence to support the findings of the trial court on the issue of liability.
The court awarded the father, Roland E. Reynolds, the sum of $3,239 based upon a finding that the father had incurred medical expenses in the amount of $739, and that he would necessarily incur future medical expenses in the amount of $2,500. The amount of medical expenses which had been incurred, $739, was established by the evidence. The $2,500 awarded for future medical expenses, is based solely upon the treating surgeon's testimony that if plastic surgery were necessary in the future, the medical and hospital costs of such an operation would be between $1,500 and $2,000. However, the surgeon's testimony, considered most favorably to the plaintiffs, established only a possibility that such an operation would be necessary in the future. The testimony is insufficient to support the court's award of future medical expense. An award of future medical expenses must be based upon substantial evidence which establishes the reasonable probability that such expenses will necessarily be incurred. See Stahl v. Cooper, 117 Colo. 468, 190 P.2d 891.
The judgment in favor of plaintiff, Danny Earl Reynolds, is affirmed. The judgment in favor of plaintiff, Roland E. Reynolds, is reversed and the cause is remanded with directions to enter judgment in favor of Roland E. Reynolds for $739.
Judgment affirmed in part, reversed in part, and remanded with directions.
COYTE and PIERCE, JJ., concur.