Legault v. Malacker

Winslow, O. J. The complaint in the action is the same as it was when the case was before us upon a general demurrer. The damages which it seeks to recover are the expenses [60] of the medical treatment and the value of the boy’s services during minority and which have been lost by reason of his death. No claim is made for the value of his services during his illness. The burden of the complaint is the recovery of death damages pure and simple under what is familiarly known as Lord Campbell’s Act. Secs. 4255, 4256, Stats. This complaint was sustained by this court against general demurrer upon the former appeal. This means, of course, that it was deliberately held that the complaint stated a good cause of action in favor of the plaintiff. It meant also that this question is settled for this case whether we now deem the decision right or wrong. It has become the law of the case and is not to be departed from. Ellis v. N. P. R. Co. 80 Wis. 459, 50 N. W. 397; Schoenleber v. Burkhardt, 94 Wis. 575, 69 N. W. 343. It is true that the only question debated upon the former appeal was whether it was necessary to allege scienter, but the question whether the plaintiff shows himself to have any right to recover damages is directly and necessarily involved in every case of general demurrer to a complaint for damages, and the decision upon such demurrer sustaining the complaint necessarily decides the question of the plaintiff’s right to recover damages in case he proves the facts therein stated. Were this prior decision not in the case, it seems that, under the provisions of sec. 4256, supra, an action to recover death damages in such a case as this could only be brought by the administrator of the boy’s' estate. That section provides that such an action should be brought by the personal representative of the deceased, except that in case there bo no cause of action in favor of the estate of the deceased, and the surviving persons entitled to the recovery be the husband, widow, or parents, suit may be brought directly in his, her, or their name or names. The present case does not come within the proviso because it appears that the deceased was [61] ill for several weeks and hence there would he an action in favor of his estate to recover for his pain and suffering. The former decision settles the law for this case, but is not to be understood as settling the law for other cases upon this question. The defendant argues, however, that even if this proposition he conceded, still the judgment should be sustained because the evidence shows that the dog had hydrophobia and, that there can be no recovery in such case unless it also appears that the defendant knew that the dog was rabid and was negligent in not keeping him confined. Upon the former appeal we held that it was unnecessary to allege scienter, and that an allegation that a dog attacked a person who was where he might lawfully be and in the exercise of care was a sufficient allegation that the dog was vicious. This is of course the law of the case on this point and we have no doubt of its being correct as a legal proposition. In the subsequent case of Harris v. Hoyt, 161 Wis. 498, 154 N. W. 842, we held that while the statute abolishes the necessity of alleging and proving scienter, it does not impose an absolute liability. This also seems to us to be good law. The logical result of these holdings is that on proof of the fact that a person has been bitten by a dog a prima facie case of liability is made against the owner or keeper; this prima facie case may be defeated if it appear either by the plaintiff’s evidence or by evidence introduced by the defendant that the plaintiff brought or helped to bring the dog’s attack upon himself by provoking the dog, by lack of ordinary care, or by trespass of such a nature as is calculated to induce an attack. This we think to be correct as a general rule; but the question now presented and argued is whether it applies to the case of a dog suffering from rabies, as the evidence shows was the case here. < [62] This question was met and decided by the supreme court of Michigan in the early case of Elliott v. Herz, 29 Mich. 202, where a statute in similar terms was held not to apply to the-case of a rabid dog. Judge Cooley said in that case-that the statute “manifestly refers to a vicious and destructive habit, from indulgence in which the mischief has resulted; and is inapplicable to the case of a rabid dog. What he does in his-frenzy is wholly involuntary, and there is no such thing as-his being accustomed to the mischief of madness, for the frenzy itself exists but once, and terminates his life. The phraseology of the statute is not suited to such a case, and it seems to me reasonable to suppose that if the legislature had purposed to give a remedy against the owner of a rabid dog for mischief done by him, especially if it was to be punitory in its nature, such remedy would have been given in more distinct terms, and been made to depend upon the owner’s, misconduct or negligence.” This seems to us to be good law and good sense. It finds, support in Van Etten v. Noyes, 128 App. Div. 406, 112 N. Y. Supp. 888. In the present case it seems that the dog which bit the deceased was rabid because it is proven that the deceased died from hydrophobia resulting from the bite. It does not appear, however, whether the dog became rabid suddenly or-whether the condition had existed for some time so that the defendant either knew or had good reason to apprehend his-condition. In the former case there would be no liability under the principle of the Elliott Gase, but in the latter case-there might be liability if the defendant, with such knowledge or means of knowledge, negligently failed to restrain or destroy him. By the Court. — Judgment reversed, and action remanded for a new trial.