Carlberg v. Willmott

• Citation: 87 Colo. 374,287 P. 863
• Decision Date: 05 May 1930
• Docket Number: 12292.
• Parties: CARLBERG v. WILLMOTT.
• Court: Supreme Court of Colorado

287 P. 863

87 Colo. 374

CARLBERG v. WILLMOTT.

No. 12292.

Supreme Court of Colorado

May 5, 1930

In Department.

Error to Weld County Court; Roy M. Briggs, Judge.

Action by Joe Willmott against John Carlberg. To review a judgment of the county court for plaintiff, on defendant's appeal from justice court, defendant brings error.

Affirmed.

Louis B. Reed and Arthur E. Healey, both of Greeley, for plaintiff in error.

J. Paul Hill, of Brighton, for defendant in error.

ALTER J.

John Carlberg, plaintiff in error, will hereinafter be referred to as defendant, and Joe Willmott, defendant in error, as plaintiff.

The plaintiff began his action in a justice of the peace court to recover damages in the sum of $250, for which amount, upon verdict of the jury, judgment was entered in his favor. The defendant appealed to the county court, where, upon verdict of the jury, a judgment was entered in plaintiff's favor for the sum of $150, to review which this writ of error is prosecuted. The three assignments of error requiring our attention may be classified as follows: (1) Proof insufficient to establish negligence, (2) refusal to give a tendered instruction and giving a certain other instruction (3) improper verdict.

The testimony of the plaintiff and his witnesses was substantially as follows: The plaintiff lived on a farm near Hudson, Colo., where he kept a herd of milch cows; a white bulldog was seen chasing and worrying the cows, and, upon examination, it was found that one of them had an ugly abrasion on her head, from which rabies developed resulting in her death; the reasonable value of this cow was $150; upon the discovery of the infectious disease in the injured cow, plaintiff had his entire herd vaccinated at a cost of $100; some time prior to the events just related, the board of trustees of Hudson had been informed, through its town physician, that rabies was prevalent in the town; they immediately met in emergency session and caused printed warning notices to be distributed among the inhabitants of Hudson and vicinity, notifying them that all dogs must be securely and safely restrained, under penalty of having the animals shot; the defendant, in addition to receiving the printed warning, had been orally notified by the officer of the town; the white bulldog seen chasing and worrying the plaintiff's cows, belonged to the defendant, and, when shot, a medical examination disclosed the presence of rabies notwithstanding the written and oral warnings, the defendant's dog was seen loose and at large in the town of Hudson.

The defendant testified substantially as follows: That he had received the oral and printed warnings, and, in compliance therewith, had immediately chained his white bulldog securely in the back yard; that on the evening before the cow was bitten, he returned home about nine o'clock, and noticed the dog was gone; that the dog was loosed by some one unknown to him; that if the dog was ever at large before this time it was loosed by a small neighbor boy who was wont to play with it. Defendant and other witnesses testified that the cow was worth not to exceed $90.

Counsel for the defendant assert that the case was tried in the courts below upon the theory of the defendant's negligence, while plaintiff's counsel endeavor to support the judgment on the theory of negligence; the common-law liability of the owner of a dog for damages done by it, or upon our statute. Section 3152, C. L. 1921. An examination of the entire record convinces us that the case was presented and tried upon the theory of the defendant's negligence, and plaintiff will be confined to that theory here. Glass & Bryant Mercantile Co. v. Bank, 83 Colo. 193, 203, 265 P. 682; Schaffer v. Loveland, 67 Colo. 454, 456, 186 P. 532.

1. It is the defendant's contention that, before judgment can be entered against him, the plaintiff must prove that defendant owed him a duty, which was breached, and that the breach was the proximate cause of the damage....