Fye v. Chapin

Montgomery, J. The defendant was the owner of a large St. Bernard dog. On the 16th of December, 1897, two servant girls in defendant’s employ called on the mother of the plaintiff, accompanied by the dog. The dog was admitted with them into the house, and, while the two callers and Mr. and Mrs. Eye engaged in conversation, the plaintiff, a child 4 years and 4 months of age, was seated on the floor of the adjoining room, playing with her dolls. She was suddenly assaulted by the dog in a very ferocious manner, and bitten on the face and on the scalp. The scalp was torn loose, resulting in a considerable loss of blood, and, it is claimed, permanent disfigure — 677 — ment. The plaintiff also gave testimony tending to show that extreme nervousness followed the shock and fright, and that in the following April she had spasms, which were epileptic, and also offered medical testimony tending to show that epilepsy is incurable, and that the most probable cause of the attack in April was the attack of the dog; that extreme fright or the injury to the scalp might either result in epilepsy. The defendant’s testimony tended to show that the spasms were traceable to causes entirely distinct from the injury by defendant’s dog. The jury returned a verdict for $10,000, and judgment for double this amount was entered by the court. The defendant brings error, assigning error on no less than 98 rulings of the trial judge. The questions which are of sufficient importance to merit special discussion are not, however, numerous, and, while none have escaped examination, we shall pass over such as are not specially discussed with the statement that we find no error in the rulings of the learned judge in respect to them. 1. The action is based on section 2 of Act No. 161, Laws 1850, being section 5593, 2 Comp. Laws 1897, which reads as follows: “If any dog shall have killed or assisted in killing, wounding, or worrying any sheep, lamb, swine, cattle, or other domestic animal, or that shall assault or bite or otherwise injure any person while traveling the highway, or out of the inclosure of the owner or keeper of such dog, such owner or keeper shall be liable to the owner of such property or person injured in double the amount of damages sustained, to be recovered in an action of trespass or on the case, and it shall not be necessary, in order to sustain an action, to prove that the owner or keeper knew that such dog was accustomed to do such damage or- mischief ; and upon the trial of any cause mentioned in this section, the plaintiff and defendant may be examined under oath touching the matter at issue, and evidence may be given as in other cases; and if it shall appear to the satisfaction of the court, by the evidence, that the defendant is justly liable for the damages complained of under the provisions of this act, the court shall render judgment against such defendant for double the amount — 678 — of damages proved, and costs of suit; but in no case shall the plaintiff recover more than five dollars costs.” It is contended that this act is unconstitutional, in that it confers upon the circuit judge power to act as a chancellor in a suit at law, in so far as he exercises the authority to double the damages. The construction which defendant’s counsel give to the statute is that, before the court shall double the damages, it must appear satisfactorily to the court that the defendant is justly liable for the damages complained of, and that the judge is, by the terms of the statute, to act independently of the jury in determining the amount of damages proved. The statute has been enforced in a number of cases. Swift v. Applebone, 23 Mich. 252; Elliott v. Herz, 29 Mich. 202; Monroe v. Bose, 38 Mich. 347; Trompen v. Verbiage, 54 Mich. 304; Burnham v. Strother, 66 Mich. 519. The questions now suggested have not heretofore been raised by either the court or counsel. This fact does not, of course, conclude the defendant. The presumption is strong, however, that the statute, which has been operated under for nearly half a century, has on various occasions, when it has been enforced, been scrutinized by both court and counsel, and found not open to attack. The statute is inartificially drawn, but we think it open to a construction which is not inconsistent with the proper exercise of the distinct functions which the law casts upon the judge and jury respectively. The liability is declared to be in double the damages sustained. The presumption is that those damages are to be ascertained as in ordinary cases, — if the trial be before a jury, by the jury; and by the court when the jury is dispensed with. While the latter portion of the section is more appropriate to a trial before the court without a jury, we think the word “court” may be construed to mean the court acting through all of its instrumentalities, which includes the jury, and, so construed, the act is operative. It is competent for the legislature to provide for doubling damages in this class of cases. Trompen v. Verhage, 54 Mich. 304; Cummings — 679 — v. Riley, 52 N. H. 368; Chickering v. Lord, 67 N. H. 555; Fitzgerald v. Dobson, 78 Me. 559; Barrett v. Railroad Co., 3 Allen, 101. 2. The defendant asked the court to charge that, as the plaintiff’s parents had the dog, in their home at the time of the assault, and had knowledge of the nature of the dog, they were guilty of gross negligence directly contributory to the injury that the child received, and that for this reason the plaintiff was not entitled to recover. It is insisted in this court that the negligence of the plaintiff’s parents was the proximate cause of the injury. In the same connection it is insisted that the servant girls, in taking the dog into the presence of plaintiff’s parents, were disobeying instructions, and that the court was in error in refusing to charge that the reckless negligence of defendant’s hired girls in disobedience of his order could not be imputed to him. We think it cannot be said that the plaintiff’s parents were in any sense the keepers of this dog. The defendant was such keeper, and the injuries were inflicted outside the inclosure of defendant. He is liable, therefore, unless the negligence of plaintiff’s parents or defendant’s hired girls relieves him. The negligence of the parents cannot be imputed to this child. Shippy v. Village of Au Sable, 85 Mich. 280; Mullen v. City of Owosso, 100 Mich. 103 (23 L. R. A. 693, 43 Am. St. Rep. 436). At the common law, in an action against the owner of a vicious dog, if the keeper knew of the vicious character, he was liable for auy damage done, without further proof of negligence on his part. The negligence was said to consist, not in the manner of keeping and confining the animal, but in keeping him at all. In some cases it is said that the owner must, at his own peril, keep him safe from doing hurt. See Kelly v. Tilton, 2 Abb. Dec. 495. In some cases the defendant has been held liable notwithstanding the contributory negligence of the plaintiff. Woolf v. Chalker, 31 Conn. 130 (81 Am. Dec. 175). A better rule is, however, stated in Muller v. McKesson, 73 N. Y. 204 (29 Am. Rep. 123), by Chief Jus — 680 — tice Church, which is that the owner cannot be relieved from liability by any act of the person injured, unless it be one from which it can be affirmed that he caused the injury himself, with a full knowledge of its probable consequences. If this be the rule as to the negligence of the plaintiff at common law, certainly the negligence of a third person cannot be held to relieve the defendant. The effect of this statute is to extend the common law so as to include all keepers of dogs, and to dispense with proof of the previous knowledge of their vicious character. The contention of defendant’s counsel cannot be sustained. 3. Plaintiff’s declaration contains two counts. In the first count, after stating the injury, it is averred: “And thereby .plaintiff was greatly bruised, cut, torn, and otherwise injured, and plaintiff’s whole nervous system was permanently injured by the shock and fright of said assault; and thereby the plaintiff was otherwise greatly and permanently wounded, and injured, and disfigured for life; and by means whereof plaintiff became and was sick, sore, lame, and disordered, and suffered great bodily pain and mental anguish and torture, and still continues to suffer great pain, and the character of said injuries is such that plaintiff will continue to suffer great pain and inconvenience, and plaintiff was thereby disfigured for life.” In 'the second count: “ The plaintiff, theretofore a sound and healthy person, became and was, and now is, sick, sore, lacerated, lame, and permanently disfigured and injured, and her whole nervous system permanently injured, and her mental faculties ruined, and her health permanently injured, and her blood poisoned and contaminated.” It is contended that these averments are insufficient to authorize proof of resulting epilepsy. The declaration in each count sufficiently avers permanent injuries, and evidence was offered to trace the injuries to the act complained of. The question is concluded by Johnson v. McKee, 27 Mich. 471; Elliott v. Van Buren, 33 Mich. 49 (20 Am. Rep. 668); Keyset v. Railway Co., 66 Mich. — 681 — 390; Montgomery v. Railway Co., 103 Mich. 46 (39 L. R. A. 387). 4. Error is assigned upon rulings of the circuit judge in admitting and excluding testimony. In some cases the testimony now complained of was received without objection, and in some cases the rulings were discretionary. It is insisted that error was committed in permitting •certain hypothetical questions. The questions are too lengthy to set out at length, but we have examined them, and find the questions fairly stated the case as the plaintiff had the right to contend that it was when the questions were put. Dr. Baldwin, who was called to attend the plaintiff at the time of the injury, and also when she was suffering from spasms in the following April, testified to her condition as he found it on the latter occasion, and stated that he ascribed the attack to indigestion. Defendant’s counsel insist that, as this testimony indicates a cause for the attack, and as it was not considered by the expert witnesses, the testimony given by them should have been wholly excluded from the consideration of the jury; and a request along this line was preferred. The doctor was a witness for the defense. The plaintiff’s witnesses had described the appearance of the plaintiff, and the testimony of the experts was based upon this description. The plaintiff had the right to have the answers stand, and to urge to the jury the claim as made out by her, particularly as there was testimony raising a question of credibility. 5. A motion for a new trial was made before the circuit judge. The same points of law were raised which we have discussed in this opinion. In addition it was contended that the verdict was excessive. The circuit judge held that, while the verdict was a large one, it was not so large as to authorize the court in finding that it was excessive. A most careful reading of the record leads us to a different conclusion. The evidence tending to show that epilepsy will result from the injury is not, to our minds, clear and convincing, although legally admissible. — 682 — It would appear that the jury resolved every doubt against the defendant, and it is by no means clear that they did not' include in their verdict an award by way of punishment. A new trial will be granted, unless the. plaintiff shall, within 30 days, elect to remit from the judgment $10,000. Defendant will recover costs of this court. The other Justices concurred.