Puls v. Powelson

Evans, C. J. At the time of the injuries complained of the plaintiff was sixteen years of age, and lived with her parents one mile north of Wesley. The defendants lived on the same north and south highway as the plaintiff, and one quarter of a mile south of her home. On New Tear’s day, 1907, while the plaintiff was walking in the highway in the direction of her home, in company with her sister and brother, and while passing the house of defendants, a dog came from the premises and attacked the 606 plaintiff by biting ber arm. Tbe attack was brief, tbe dog running away as soon as it was done. The plaintiff suffered a wound wbicb penetrated tbe skin on one side, and wbicb became infected to some extent. It caused ber much pain, and disabled ber from doing any work for about one week. There was a complete recovery within about two weeks. This is presenting tbe case in accord with plaintiff’s testimony. Under the testimony in plaintiff’s behalf she was entitled to substantial damages, but not to large damages. Tbe action was brought under tbe statute. Tbe statute creates an absolute liability on tbe part of the owner of a dog for damages done by him, regardless of knowledge or negligence on tbe part of tbe owner. In this respect tbe statute may be said to be drastic, though in tbe interest of public policy. Tbe damages contemplated by it, however, are compensatory only. In this case no expenses were involved, nor loss of time, nor exemplary damages. Tbe element of temporary pain and suffering furnishes tbe only basis for damages claimed. The jury allowed $1,000, being tbe full amount claimed in the petition. Tbe amount was manifestly excessive. The trial court reduced it to $666.66, which tbe plaintiff elected to take. We can not avoid the conviction that even the reduced verdict was still grossly excessive, nor can we avoid tbe conclusion that tbe verdict must have been given under tbe influence of passion and prejudice. There are some matters appearing in the record wbicb doubtless account for tbe excessive verdict, but it will serve no useful purpose for us to discuss them. In view of the fact that the case has been twice tried, and that tbe right of the plaintiff to recover in some amount is very strongly supported by the evidence, tbe majority of this court are of the opinion that a new trial ought not to be peremptorily ordered on this record without giving plaintiff a right of election to take a reduced amount. It is also the conclusion of the majority that such amount 607 ought to be fixed at $300. Plaintiff may have her election to take judgment for $300, with interest thereon from the date of the verdict, or submit to a new trial. She may file her election within sixty days after the final disposition of the case in this court. If she file an election to take the amount named, the judgment below will be modified and affirmed accordingly. If she fails to file such election, it is ordered that the judgment below be reversed, and the case remanded for a new trial. — Reversed. ■