Beckert v. Risberg

• Decision Date: 20 May 1965
• Docket Number: No. 38833,38833
• Citation: 210 N.E.2d 207,33 Ill.2d 44
• Parties: Andrew BECKERT, Appellant, v. L. C. RISBERG, Appellee.
• Court: Illinois Supreme Court

Page 207

210 N.E.2d 207

33 Ill.2d 44

Andrew BECKERT, Appellant, v. L. C. RISBERG, Appellee.

No. 38833.

Supreme Court of Illinois.

May 20, 1965.

Rehearing Denied Sept. 27, 1965.

Cooney & Stenn, Chicago (Robert J. Cooney and Irving Stenn, Jr., Chicago, of counsel), for appellant.

Joseph A. Bailey and Henry H. Caldwell, Chicago, for appellee.

KLINGBIEL, Chief Justice.

Andrew Beckert, a child three years of age, was badly bitten by a dog. On April 3, 1963, he brought action by his mother and next friend, against the owner in what was then the municipal court of Oak Park. Trial was had before a jury, a verdict was returned for the plaintiff in the amount of $9,500, and judgment was entered on the verdict. Upon defendant's appeal to the appellate court it was reversed and the cause remanded for error in the giving of instructions. (Beckert v. Risberg, 50 Ill.App.2d 100, 199 N.E.2d 811.) We have granted the plaintiff leave to appeal, and the cause is here for further review.

The evidence shows that on May 14, 1961, the plaintiff with several other small children was sitting on the terrace in front of defendant's house. Suddenly one of them called to her parents, who were playing badminton nearby, and directed their attention to the plaintiff lying on the ground with the dog standing over him. The plaintiff's face was lacerated and bleeding in several places. The incident occurred five or six feet outside the gate to defendant's yard, which was standing open. The record contains no evidence to indicate what if anything had provoked the dog, nor is there anything to show what happened at all before it was discovered the child had been bitten.

Under a statute in force at the time of the occurrence it was unnecessary to prove negligence in order to recover damages. To render the owner liable it was enough 'If a dog, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be.' (Ill.Rev.Stat.1959, chap. 8, par. 12d.) To recover under the rule at common law, on the other hand, it was necessary to allege and prove that the animal had a mischievous propensity to commit such injuries and that the owner had knowledge of the propensity. (Domm v. Hollenbeck, 259 Ill. 382, 102 N.E. 782.) The complaint in the case at bar is in two counts, the first alleging a statutory cause of action and the second a cause of action based upon negligence. To each count the defendant filed a general denial. He alleged, in addition, that the plaintiff's injuries were the result of his own negligence.

At the trial no evidence was introduced that the dog had vicious propensities, nor was the evidence in other respects sufficient to prove a common-law cause of action. Over defendant's objections the court instructed the jurors that they 'must not consider the question of whether there was contributory negligence on the part of Andrew Beckert because, under the law, a child of the age of Andrew Beckert is incapable of contributory negligence.' The jury was further directed that 'if you find that the parents of Andrew Beckert were negligent, that negligence shall not be charged against him, and it does not prevent a recovery by him if he is otherwise entitled to recover.' The appellate court held that since the only question left in the case was one of...