Swift v. Applebone

Cooley, J. Whatever objections may exist, in point of policy, to allowing the next friend of an infant plaintiff to be sworn as interpreter for a witness who does not speak the English language, we cannot say that in law it is erroneous. The old common-law rules which excluded parties and interested persons from being witnesses in civil cases, are now entirely done away with in this state; and though we think such a person ought not, except for very peculiar and satisfactory [258] reasons, to be placed in the responsible position of interpreter, where the temptation to fraud might be great and the difficulty of detection greater, yet the question whether it shall be allowed in any particular case, must rest in the discretion of the judge presiding at the trial, who may be relied upon to call in a disinterested and impartial person for that office, wherever he shall find it practicable. Nor do we think the court erred in refusing to strike out the testimony of the witnesses, Banner and Bell. Those Witnesses appear to have been examined to show that the defendants below had knowledge of the vicious character of the dogs which inflicted the injury; and as the plaintiff went to the jury, upon the second count only, and, under that count and the statute upon which it was framed, the liability of the defendants.did not depend upon the scienter, they insisted with some force that any testimony to establish it was irrelevant. But we think that in any case of such injury, the fact of knowledge, in the owner, of the vicious disposition of his dog may very properly go to the jury, as one to be taken into account by them in estimating the damages; and that one who knowingly subjects every person who passes his house to the z’isk of being torn by a savage beast, cannot demand, as a right, that the recklessness of his conduct shall be excluded from the jury when compensation to the injured party is being estimated. The jury should judge of such a case in view of all the circumstances-; and as the sense of injury suffered will depend very lai’gely upon the disposition shown by the owner of the dog to respect or disregard the rights of others, it is proper that the jury know what that disposition has been. Recklessness of conduct, or the want of due and reasonable care, is an important element in estimating the damages in most cases of tort, and we know of no reason why this case should be made an exception. It would' be absurd to [259] hold that if defendants had instigated the dogs to commit the injury, the plaintiff’s recovery should be measured by the same standard that it would have been had the attack been made without their knowldge, by an animal never known to be vicious before; and if malicious conduct on their part should affect the damages, reckless conduct cannot be regarded as immaterial. The true course in such cases, we think, is to place all the facts before the jury, •and let their opinion of the proper compensation to be awarded, be formed of them all. The defendants below, plaintiffs m error, have also argued in this court that the court below erred in not awarding judgment for them on the whole record, inasmuch as the verdict rendered in their favor on the first and third counts was inconsistent with any verdict against them on the second count, which was for the same cause of action as the others. Also, that the court below erred in not giving judgment in their favor for costs upon the issues found in their favor. It is sufficient to say of these supposed errors that there is nothing in the record to base them upon, as it does not appear that any motion for judgment in favor of defendants was made in the court below. But had such a motion been made, the court could not have held that the three counts of the declaration were for the same cause of action, for as a legal proposition they were not. The course taken to double the damages, we think the proper one, and, as we find no error in the record, the judgment of the court below must be affirmed with costs. The other Justices concurred.