Burnham v. Strother
| Decision Date | 23 June 1887 |
| Citation | 66 Mich. 519,33 N.W. 410 |
| Court | Michigan Supreme Court |
| Parties | BURNHAM, by His Next Friend, v. STROTHER. |
Error to circuit court, Eaton county.
Action to recover damages for injuries caused by the bite of a vicious dog owned by defendant. The declaration contained but one count, and alleged that defendant was the "keeper" of the dog. Judgment for defendant. Plaintiff brings error.
Foote & McCall and D.P. Sagendorph, for plaintiff and appellant.
Frank A. Dean, for defendant.
The plaintiff in this case was a small boy about six years of age, and brings his suit by his next friend, to recover for injuries received from an attack upon him by a vicious dog owned by the defendant. The action is brought under section 2119 of Howell's Statutes, and which is 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."
The facts in the case, as appears by the record, are few, and the only errors assigned relate to the circuit judge's charge and refusal to charge. The defendant was the owner of the dog that did the injury, and there is no question but that the dog bit and injured the plaintiff; but the defendant claimed upon the trial that, while he was the owner of the dog, he was not his keeper at the time the plaintiff was injured, and that, under the circumstances of this case, the owner was not liable. The cause was tried by a jury before Judge HOOKER in the Eaton circuit, and the verdict and judgment went for the defendant, and the plaintiff brings error.
The declaration contained but a single count under the statute. Upon the trial the defendant offered evidence tending to show that, at the time of the alleged injury, and for some time previous thereto, the dog had been staying at the house of the plaintiff's father, who had enticed said dog away from the defendant, and kept him away against the will of defend...
To continue reading
Request your trial