Bush v. Wathen, by Guardian

• Decision Date: 22 October 1898
• Citation: 104 Ky. 548
• Parties: Bush v. Wathen, by Guardian.
• Court: Kentucky Court of Appeals

104 Ky. 548

Bush v. Wathen, by Guardian.

Court of Appeals of Kentucky.

October 22, 1898.

APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.

O'NEAL & PRYOR AND H. H. NETTLEROTH FOR APPELLANT.

R. C. DAVIS, MATT. O'DOHERTY AND JOHN J. DAVIS FOR APPELLEE.

SAME COUNSEL IN A SUPPLEMENTAL BRIEF.

SAME COUNSEL FOR APPELLEE IN A PETITION FOR A REHEARING.

JUDGE PAYNTER DELIVERED THE OPINION OF THE COURT.

The right to recover in this action is based on section 68, Ky. Stat., which reads as follows: "Every person owning, having or keeping any dog shall be liable to the party injured for all damages done by such dog. But no recovery shall be had in case the person injured is, at the time, upon the premises of the owner of the dog after night, or engaged in some unlawful act in the daytime." The appellant, Bush, was the owner of a St. Bernard dog; and, while he was such owner, it attacked, bit, and tore the face of the appellee, George Wathen, a boy over twelve years of age, and permanently disfigured his face. The first trial of the case resulted in a verdict for the defendant. The court gave a new trial, and it resulted in a verdict for the plaintiff in the sum of $850. Bush entered the dog in the bench show at the Armory of the Louisville Legion, which was under the control of the Louisville Kennel Club, and paid three dollars for the privilege. The dog, while in the stall which was assigned to Bush for his dog, bit and lacerated the face of the appellee, George Wathen.

It is insisted that the appellant, Bush, is not liable for the injury inflicted by the dog, because, at the time it was done, it was under the control of the Kennel Club. The dog was there with the consent of the appellant, and he was as much liable for the injury which it inflicted under such circumstances as he would have been had he been present and in control of it. Suppose A should loan B his dog that he might use him for the purpose of hunting for a time, and during that time the dog killed C's sheep, unquestionably A would be responsible for the damage which his dog did under such circumstances. Under the plain language of the statute, the owner is responsible for the act of a dog, and likewise is the party who may have him in possession at the time of the injury. From this view it follows that the court did not err in refusing to allow the amended answer to be filed, in which the defendant, Bush, alleged he was not responsible, because of the fact the Kennel Club had the dog in its possession and under its control at the time it injured the boy.

The petition averred that the dog bit Wathen, and that, at the time, he was not on the premises of Bush after night, or engaged in any unlawful act in the daytime. It is argued by counsel for appellant that, although the petition negatived the exception in the statute, it was not necessary that it should have been done, and therefore the plaintiff could not thereby control the action of the court in determining who had the burden of proof. It is clear, if such negation was unnecessary, the plaintiff could not make it, and thus take the burden of proof, and, consequently get the closing argument to the jury. It was not necessary for the plaintiff to allege that he was not on Bush's premises after night, or engaged in some unlawful act in the daytime, when the dog injured him. When he alleged that Bush owned the dog, and that it bit and injured him, a cause of action was stated. There is no proviso in the enacting clause to be negatived; neither is there an exception in the clause making the owner liable to a party injured by his dog for the damage done by it. It reads: "Every person owning, having or keeping any dog shall be liable to the party injured for all damages done by said dog." There is a proviso, however, in the same section of the statute, but it is a separate and distinct clause; as much so as if it had been in a separate section. When there is an exception in the enacting clause, the plaintiff must negative it. If the exception is in a subsequent clause to that giving the cause of action, then, if it gives the defendant exemption from liability, he must plead it.

1 Chitty On Pleading (8th Am. Ed.), 222, states the rule as follows, to-wit: "In pleading upon statutes, where there is an exception in the enacting clause, the plaintiff must show that the defendant is not within the exemption; but, if there be an exception in a subsequent clause, that is matter of defense, and the other party must show it to exempt himself from the penalty." And on the next page (Chitty) Lord Tenderden is quoted as follows: "If an act of parliament or a private instrument contain in it, first, a general clause, and afterwards a separate and distinct clause, something which would otherwise be included in it, a party relying upon the general clause, in pleading, may set out that clause only, without noticing the separate and distinct clause which operates as an exception. But, if the exception itself be incorporated in the general clause, then the party relying upon it must, in pleading, state it, with the exception." Bliss On Code Pleading, 202, says: "When the exception is embodied in the body of the clause, he who pleads the clause ought to plead the exception; but when there is a clause for the benefit of the pleader, and afterwards follows a proviso which is against him, he shall plead the clause, and leave it to his adversary to show the proviso." When exceptions to the general provision of a statute are found in a distinct clause, the plaintiff need not allege that he is not within them. Nichols v. Sennitt, 78 Ky., 630. The court said in Com. v. McClanahan, 2 Metcalfe, 10: "It is well settled that, where provisos and exceptions are contained in distinct clauses, it is not necessary to aver in the indictment that the defendant does not come within the exceptions, or to negative the provisos it contains. Nor is it necessary to allege that he is not within such provisos, even though the purview should expressly notice them; as by saying that none shall do the...