Vassaw v. Thompson

Citation1 N.W. 4,46 Wis. 345
PartiesVASSAU v. THOMPSON
Decision Date04 March 1879
CourtUnited States State Supreme Court of Wisconsin

APPEAL from the Circuit Court for Polk County.

The defendant appealed from a judgment in favor of the plaintiff. The case is stated in the opinions.

Judgment affirmed.

For the appellant, there was a brief by Geo. D. McDill, and oral argument by S. H. Clough.

For the respondent, there was a brief by L. P. & J. K. Wetherby, and oral argument by S. U. Pinney.

ORSAMUS COLE, J. DAVID TAYLOR and HARLOW S. ORTON, JJ., concurred. EDWARD G. RYAN, C. J. and WILLIAM P. LYON, J., dissented.

OPINION

COLE J.

This action was commenced in a justice's court, to recover damages for a cow alleged to have been fatally bitten by a dog of the defendant. The plaintiff recovered a verdict for the value of the cow, on the trial before the justice. The defendant took the case by appeal to the circuit court, where there was another trial on the merits, and another verdict for the plaintiff. Before judgment, a motion was made for a new trial on a case made, on the grounds, (1) that the verdict was against the law and evidence; (2) that there was no evidence given on the trial to show any liability on the part of the defendant, or to warrant a verdict for the plaintiff; and (3) that the court erred in denying the defendant's motion for a nonsuit. The motion was denied, and judgment entered on the verdict. It is now insisted that the judgment should be reversed because the complaint does not state a cause of action, in that it does not allege that the defendant had notice of the mischievous disposition of the dog.

The cause was tried in the circuit court on the pleadings filed before the justice. The complaint, omitting the title of the cause, is as follows: "The plaintiff shows against defendant, that on or about the 7th of September, at Alden in said county, the defendant's dog did bite, worry and lug plaintiff's cow, from the effects of which she was killed, to the damage of $ 45, for which plaintiff demands judgment and costs of suit." The answer was a general denial. On the issue thus formed, the cause was tried on its merits, without any objection that the complaint was defective. But it will be seen that no scienter is alleged, and none was proven. If, therefore, the defendant's liability is to be placed upon the ground that he negligently kept a dog accustomed to attack and bite cattle, with knowledge of the dog's mischievous propensity, then it seems to me the verdict is not only against evidence but is wholly unsupported by evidence. For there was not only a failure to allege and prove a scienter, but there really is no evidence tending to show, or which would warrant the inference, that the dog was accustomed to attack and bite cattle of his own accord. Consequently, if we were to treat the complaint as amended by an averment of scienter, this would not help the verdict, because neither such scienter nor the vicious propensity of the dog was shown on the trial.

But the learned counsel for the plaintiff does not rest the responsibility of the defendant on any such ground. He insists that the action is for an injury resulting from the defendant setting his dog upon the cow, and that the case was tried upon that theory. In that aspect of the case, it is apparent that the complaint is very defective; but if there was evidence which would warrant the jury in finding that the injury was committed in this manner, the failure to allege that the defendant set his dog upon the cow and caused the injury, may now be disregarded, under the rule adopted by this court in a number of cases. In Miller v. Spaulding et al., 41 Wis. 221, which was an action for killing the plaintiff's dog, the defendants justified the killing because the dog was running at large trespassing upon their farm, chasing their sheep, etc. The question whether the plaintiff knew of the vicious disposition of the dog, was litigated on the trial without objection, though the answer did not aver it. This court held the answer defective for want of such averment. But Mr. Justice LYON, in giving the opinion, says that "the scienter was proved without objection, and it is well settled that in such a case the answer may be amended before or after judgment, so that it will correspond with the proof, or the defect may be disregarded." The remarks of DIXON, C. J., made in Bowman v. Van Kuren, 29 Wis. 209, are cited with approval, where the chief justice says, that "the omission or defect of pleading in such a case, it appearing that the party has had a full and fair trial, and opportunity to prosecute or defend on the merits, becomes a mere formal one, which affects no substantial right, and for which the statute declares no judgment shall be reversed or affected. " The same doctrine has been recognized and acted upon in Flanders v. Cottrell, 36 Wis. 564, and other cases. The principle of these decisions is applicable to the question before us. For no objection was taken to the complaint in the court below on any ground, nor was there any objection to the admission of testimony offered to sustain the action. Under these circumstances, it seems to a majority of the court that the defect in the complaint must be disregarded, if there was evidence to justify the jury in finding that the injury complained of was caused by the defendant setting his dog upon the cow. Of course the complaint might have been amended on the trial to make it conform to the proof given.

Assuming then, the defect in the complaint to be an amendable one, or one which will now be disregarded, we have further to inquire whether there was any evidence tending to establish the defendant's responsibility on the ground on which it is placed by plaintiff's counsel. On that point we have this to say, that while the testimony is not very direct and satisfactory that the injury was caused by the defendant's setting his dog upon the cow, still we think there was sufficient evidence to carry the case to the jury upon that question. The testimony will not be commented on, and we content ourselves with saying that in our judgment the case contains circumstances and facts from which the jury might have drawn the inference that the injury was caused in this manner. If so, the verdict can be sustained upon that ground. It is true, it does not appear what view the jury took of the case, or what facts they found established by the evidence. The verdict is a general one in favor of the plaintiff. But the above is the only ground of...

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