Burns v. Fredericks

Butler, O. J. This was an action to recover for damage done by a dog, against the defendant as owner, the dog at the time being in the keeping of another person, one Mitskey, whom the defendant claimed to be the owner. The case presents numerous questions, which will be considered in the order in which they are presented by the motion. 1. The first two questions relate to declarations by Mitskey to the plaintiff’s father, after the injury, while he was in possession of the dog, to the effect that the defendant was the owner. The plaintiff sóught to get these declarations before the jury, as evidence that the defendant owned the dog. The court properly excluded them. Mitskey was not the agent of the defendant, nor the keeper of the dog under the defendant, and was interested to impose the ownership on the defendant to avoid liability for the injury. The declarations were clearly inadmissible. One Wielbacker was examined as a witness for the plaintiff to prove the injury and how it occurred. The motion does not show that his testimony in relation to what took place at the time of the transaction, was objected to by either party. But on his cross-examination the defendant’s counsel inquired of him whether he had not said that the dog was not to blame, which question and answer were objected to, but admitted by the court. The witness answered that he had not so said. The motion does not show particularly what the testimony of Wielbacker was. The question clearly had relation to the matter testified to by the witness in chief, and the motion does not show that the declaration would not have tended to contradict the witness, nor that it was not within the. latitude of cross-examination which the court in its discretion might properly admit. 3. The defendant also inquired of another witness, Sarah Burns, whether Wielbacker had not told her that the dog [92] was not to blame. The bearing of this question clearly was to contradict the testimony of Wielbacker, and it was clearly admissible. It is not an answer to this view of the case to say that the question involved a mere matter of opinion. The declaration if made may have reached much farther, and for aught that appears on the motion may have tended to'show that Wielbacker had not stated in his testimony all the acts of provocation committed by the plaintiff upon the dog, or had not stated them truly. And the same view is taken of the testimony of the defendant on the same point, which was objected to for the same reason. 4. The defendant also offered the declaration of Sarah Burns that she knew the dog was not to blame for what he had done, and that declaration was objected to and admitted. Sarah Burns had been inquired of when on the stand as witness for the plaintiff, whether or not Wielbacker had told her, on the night following the accident, that the dog was not to blame. She was also inquired of whether the plaintiff had not told her so. She answered both questions in the negative. The motion shows that Wielbacker and- the plaintiff were present at the injury but does not show that any other witnesses were. If the witness had herself admitted that she had made such a declaration, it would have tended in some degree to show that she had received a different version of the transaction from that testified to by Wielbacker and the plaintiff and received it from them. The bearing of the testimony was evidently slight, but we cannot say that it was inadmissible, or that it was of sufficient importance if inadmissible to justify the granting of a new trial. ■5. The defendant offered the declarations of Mitskey to him, to the effect that he bought the dog of the defendant, but would not have him any longer. The testimony was offered and received to explain the fact that the defendant took possession of the dog on the next day, and for that purpose was clearly admissible. 6. The motion states that the court charged the jury, among other things, that the statute provided that any dog should be presumed to be owned by the owner or occupier of [93] the premises on which such dog was kept or harbored. We cannot find error in this part of the charge. This is the plaintiff’s motion, and he is bound to point out clearly the error of which he complains. It is said that this was charged “ among other things,” but among what other things, or in what connection with them, or for what purpose, does not appear. There is such a statute, and the motion shows that the judge alluded to it in his charge, but in what connection, or for what purpose, or what construction he gave it, or what application he made of it, or how the plaintiff was or could be aggrieved by the allusion to it, does not appear, and the objection need not be considered. Eor these reasons we advise the Superior Court that a new trial should be denied. In this opinion the other judges concurred.