Ehrlinger v. Douglas

Ureter, J. Under the charge oí the court the jury necessarily found that the dog attempted to bite defendant’s child; otherwise their verdict must have been for plaintiff. Either there is. a failure to incorporate all the testimony in the bill of exceptions, or the learned circuit judge misapprehended the testimony, for it does not tend to show that the dog attempted to bite the child. We will dispose of the case, however, as though the question submitted had been whether the dog attempted to bite the defendant’s wife, instead of his child, and wTill assume that the court correctly instructed the jury that if the dog did so the defendant was justified in hilling him. There is no testimony that the dog attempted to bite the wife, other than the testimony of defendant that she said so when she came out of the house and called him, just before the shooting. Upon this testimony alone the judgment rests. The court held, against objection and exception, that the testimony pertained to the res gestm, and hence was competent to prove the attempt of the dog to bite the wife. We are of the opinion that this testimony was mere hearsay, and therefore inadmissible. Had the dog bitten the wife, and were this an action by her to recover damages therefor, probably what she said on coming out of the house would have been a part of the res gestm, and might have been shown. But in this case the essential fact is the shooting of the dog; and the alleged attempt of the dog to bite is an antecedent and independent fact, which must be proved by legal evidence before it can be made available as a justification for the subsequent act of shooting committed by the husband, who was not present when the attempt was made to bite the wife. Had the defendant, immediately after the shooting, said, “ This dog attacked me, and I killed him,” that would probably be part of the res gestm. But we are aware of no rule of evidence which stamps that character upon a statement, made by a third person to the [62] defendant, of an antecedent fact or circumstance, so' that proof that tbe statement was thus made becomes competent evidence to prove the truth of the statement. In Felt v. Amidon, 43 Wis. 467, this court approved the doctrine of Lund v. Tyngsborough, 9 Cush. 39, wherein it is said: “ There must be a main or principal fact or transaction, and only such declarations are admissible as grow out of the principal transaction, illustrate its character, are contemporary with it, and derive some degree of credit from it.” Per Fletcher, J., page 42. In 1 Greenl. Ev. § 108, note 2, this case is fully approved as containing a correct statement of the law as to what declarations are admissible as parts of the res gestae. As already observed, the main or principal fact or transaction in this case is the shooting of the dog. Most assuredly the declaration of the defendant’s wife that the dog attempted to bite her did not grow out of such fact or transaction; neither does it derive any degree of credit therefrom, because the act of shooting had not been committed or contemplated when the declaration was made. It may be that testimony of the declarations of the wife might have been admissible to disprove malice on the part of the defendant, were the plaintiff seeking to recover exemplary damages. But he only seeks to recover the value of his dog, and the court charged the jury that such value was the measure of damages. Hence the question of malice is not in the case, and it was error to admit the testimony of the declarations of the wife for any purpose. This rule is not affected by the fact that she is an incompetent witness for her husband to prove the fact. It is the misfortune of the defendant,-— a misfortune which he shares in common with very many litigants,— if he is unable to prove his defense. By the Oowrb. — ■ The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.