Robb v. Shephard

Marston, J. This action was brought to recover damages which the plaintiff sustained in consequence of being bitten by a dog which it is alleged was kept by the defendant. The plaintiff recovered a judgment and two errors are assigned in this Court as reason for a reversal. First. That the court erred in the instructions given the jury as to what would be sufficient to show that the defendant, while not the owner, might be considered as the keeper of the dog. Taking all that was said upon the subject the jury could not have found that this defendant was the keeper of the dog. The court distinctly said that there was no evidence [190] (in tbe case to sbow that the defendant did keep the dog, ¡but on the .contrary that the dog belonged to her husband, or at all events that he was the keeper of the dog, and that under the evidence the defendant would not be. Secondly. It is said the court erred in charging the jury, that if on the day the plaintiff was injured, he inquired of the defendant as to the ownership of the dog and was informed, in reply thereto, that the dog belonged to her, and that the plaintiff in reliance upon such information brought this action, the defendant on the trial would be estopped from denying the fact on the trial. The court instructed the jury she .could only be so estopped, in case she knew that the inquiry was made with reference to ascertaining who was liable for the injury sustained. We are of opinion that no error was committed in so instructing the jury, and that the case comes within wha+ was said by this Court in Meister v. Birney 24, Mich. 440. There was evidence to bring this case within the rule laid down. The judgment will therefore be affirmed with costs. Graves, C. J. and Cooley, J. concurred.