Laguttuta v. Chisolm

Ingraham, J.: The action was brought to recover for the damages sustained by the plaintiff by reason of the bite of a dog owned by the defendant Wilson. There was no motion for a nonsuit at the end of the plaintiff’s case, but after the evidence was all in, the defendants moved for the direction of a verdict, which motion was granted as to both of the defendants. It seems that the defendant Wilson was in possession of certain premises in East Eleventh street, in the city of Hew York, and owned and maintained upon the premises a watch dog, usually kept chained in the daytime. Upon these premises there was a stable, and Wilson rented stalls in this stable and used the yard for the storage of trucks. He had entire charge of the premises, renting the stalls for horses and the yard for'trucks, and after deducting a percentage of the receipts, paid the balance [328] to the defendant Chisolm who was the owner of the premises, as-compensation for the nse of the premises for the purposes mentioned. This dog in question was owned and kept upon the premises by Wilson for his own purposes, as there is no evidence that Chisolm-, had any knowledge that the dog was there, or had anything to do-with it. There was evidence to show that the dog had bitten a-boy prior to the occurrence in question of which Wilson had notice. I think that the question as to Wilson’s liability for the injury inflicted upon the plaintiff was one for the jury. The plaintiff’s-father kept his horses and truck upon the premises and paid Wilson therefor. At the time in question he sent his driver to get this-team and truck, and as the driver did not speak English he sent the plaintiff, a boy about nine years of age, to act as interpreter. The hoy was thus lawfully upon the premises, and while waiting in the yard for the driver to bring the horses from the stable was-attacked by the dog and severely injured. It was said that the boy had been warned before of the character of the dog and was told not to come upon the premises, but the boy was upon the premises in connection with the lawful business carried on there, acting for his father who, under contract with Wilson, had the right to go-there, and the boy had no knowledge that at the time of the occurrence the dog was-unchained, and did nothing to provoke the dog. There is nothing to show that the plaintiff voluntarily assumed the risk of being bitten by this dog or that any act of his contributed to the injury. There was sufficient to justify the jury in finding-that Wilson had knowledge that this dog was a dangerous animal. As was said in Brice v. Bauer (108 N. Y. 432), “ the very purpose-for which the defendant kept him (the dog) charges him with, knowledge of his character, and he is, therefore, chargeable with, negligently keeping him, although it had not appeared that he had actually bitten another person before he bit the plaintiff; ” and the-court cited with approval what was said in Buckley v. Leonard (4 Den. 500) that aside from proof that the defendant had notice of the dog’s disposition, “ the fact that he usually in the daytime kept him confined, and in the night kept him in his store, is strong evidence that he was fully aware that the safety of his neighbors would be endangered by allowing him to be at large.” It would seem,. [329] therefore, that the judgment directing a verdict in favor of the defendant Wilson should be reversed. A different question is presented as to the liability of the defendant Chisolm. The relation between Chisolm and Wilson is not very-clear from the plaintiff’s evidence. Wilson was called by the plaintiff and testified that prior to the year 1898 he was in possession of’ the premises under an arrangement that he had with one Cruikshank who was then its owner; that when he first went there lie went as a watchman at twenty dollars a month, and that continued until a malthouse, which was upon the premises, was torn down ; that after the malthouse was torn down there was no building upon the premises ; that Wilson then made an arrangement with Cruikshank by which he (Wilson) was to use the property for storage,. Wilson to receive thirty per cent of the proceeds ; that this arrangement continued until Chisolm bought the property, which seems to' have been about the 29th of July, 1898 ; that after Chisolm bought the property he saw Wilson and the arrangement that had theretofore existed was continued, Wilson remaining in possession of the property and renting it out for storage purposes and accounting to Chisolm for the amount that he collected, deducting thirty per cent for his services ; that sometime after Chisolm became the owner of’ the property he built a stable thereon and an arrangement was there made by which Wilson was to do his best to fill the stable and store trucks in the yard, keep an account of the receipts and take out his. commissions and pay Chisolm the difference, and that that was the arrangement upon which Wilson remained there ; that at the end of each month he rendered an account to Chisolm and paid him the amount due ; that Wilson managed the property entirely, made the bargains with the people, did the best he could, and searched for business, and Chisolm did nothing in regard to the business, except that at the end of each month he received his proportion of the amount realized by Wilson for the use of the premises. Wilson further testified that he owned the dog and kept him upon the premises for his own purposes. Chisolm was examined on the part of the defendants and testified that he leased the premises to Wilson who agreed to pay as rent therefor a percentage of the gross amount received for the use of the stable. It seems to me quite evident that, accepting either version of the relation that existed, Chisolm [330] was not responsible for any injury that might be caused by this dog. The dog did not belong to him, and he had nothing to do with maintaining it upon the premises. It was not kept there to protect his property, or any interest that he had therein. His sole interest in the property was that of owner, and he was only interested in receiving a portion of the rents obtained therefrom. The protection of this piece of land certainly did not require the presence of a sav„ age dog, and Wilson did not occupy the position of a servant or employee who was intrusted by Chisolm with the care of this dog. Thus, Chisolm never owned the dog ; had no knowledge that it -was kept upon his premises; authorized no one to keep a dog there; had no relation or connection with the keeping of the dog, or any knowledge that a dangerous dog was maintained upon the premises. The foundation of this action is negligence, and no recovery has been sustained in any of the cases to which our attention has been called without proof that the vicious animal was owned or maintained by the person liable for his acts. The case of Marsh v. Hand (120 N. Y. 315) seems to be directly in point. That case was to recover damages for an injury caused by a buck sheep which made an attack on the plaintiff, and the court held that the evidence was sufficient to charge the owner of the sheep with liability for the damage sustained by the plaintiff. It appeared that the defendant Hand was the owner of the farm and certain stock; that he surrendered the entire control of the stock to one Cumber, who undertook to take care of it, and that Cumber as well as Hand had an interest in the stock, but the ram which did the injury complained of was not left upon the farm by the defendant Hand, or put there by him. It was purchased by Cumber after he went into occupancy, of which fact Hand had no notice. It was contended that the trespass and injury was the result of the negligence of Cumber, and for his negligence Hand was liable; but it was held that that proposition could not be supported on the ground that he was their servant; that no such relation arose from the contract. The court say : “ Here Cumber, by the contract, undertook to occupy and work the farm and manage the stock left there, in his own way, with a view to results and without any contribution of the defendants Hand to the service, with the performance of which they had nothing to do. The practical effect of the [331] contract was that the executors should have a share of the products by way of compensation for the use of the property, and that Cumber was entitled to the other share as compensation for his labor in performing the contract. Ho negligence of the latter in the performance of the work to the prejudice of third parties could charge the Hands with liability.” This precise relation is presented in this case. Wilson undertook to manage this property and procure as much as possible for it, the proportion paid to Chisolm being the compensation that he was to receive for the use of his property, and for the negligence of Wilson in maintaining upon the premises a vicious dog, Chisolm was not responsible. The plaintiff claims that the testimony of Wilson as to his relation with Chisolm was not entitled to credit, but Wilson was called as a witness by the plaintiff, and assuming that his testimony was not to be believed, we have no evidence as to Chisolm’s relation to the property, except his own, which was that he leased the property to Wilson. The fact that Wilson’s testimony could be discredited would not be evidence to justify a finding that Chisolm was the owner of, or maintained, this dog. To entitle the plaintiff to recover against Chisolm he had the burden of proving that Chisolm was responsible for the acts of the dog. Either with or without Wilson’s testimony there is not a particle of evidence that would justify a finding of Chisolm’s liability. It follows that a direction of a verdict in favor of Chisolm was correct and should be affirmed; that the judgment for the defendant Wilson should be reversed, with costs to the plaintiff against Wilson to abide the event and the judgment in favor of Chisolm affirmed, with costs against the plaintiff. Laughlin, J., concurred; Van Brunt, P. J., concurred as to defendant Chisolm, and dissented as to defendant Wilson ; Patterson and Hatch, JJ., dissented as to defendant Chisolm.