Cox v. Hayes

• Decision Date: 24 June 1971
• Docket Number: No. 2,Docket No. 10447,2
• Citation: 192 N.W.2d 68,34 Mich.App. 527
• Parties: Pamela Sue COX, by Lute Cox, next friend, Plaintiff-Appellant, v. Michael W. HAYES and Nadine Hayes, jointly and severally, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 68

192 N.W.2d 68

34 Mich.App. 527

Pamela Sue COX, by Lute Cox, next friend, Plaintiff-Appellant, v. Michael W. HAYES and Nadine Hayes, jointly and severally Defendants-Appellees.

Docket No. 10447.

Court of Appeals of Michigan, Division No. 2.

June 24, 1971.

Released for Publication Dec. 3, 1971.

Kenneth B. Johnson, Jackson, for plaintiff-appellant.

Charles A. Nelson, Resenburg, Painter, Stanton & Bullen, Jackson, for defendants-appellees.

Before R. B. BURNS, P.J., and FITZGERALD and J. H. GILLIS, JJ.

J. H. GILLIS, Judge.

Society no longer allows the Canis familiaris one free bite. ¹ This action arose when plaintiff, Pamela Sue Cox, through her next friend, her mother, sued for damages for permanent injuries sustained by her as the result of a dog bite, M.C.L.A. § 287.351 (Stat.Ann.1967 Rev. § 12.544). In a nonjury trial, the court decided in defendants' favor. Plaintiff now appeals from the lower court order of no cause of action.

Testimony given at trial disclosed that plaintiff was a 3-year-old deaf mute. At the time the injury occurred, defendants' dog, a great pyrenees, was 7 years old and weighed approximately 135 pounds. The dog was housed at the rear of defendants' lot. It was secured by a 25-foot chain which was in turn attached to a small swivel at the end of a stake anchored in the ground. The only fence separating this area from the property around it was one that ran along the property line between defendants' and plaintiff's lots.

Mrs. Hayes, one of the defendants, testified to the following: Plaintiff, her 13-year-old sister, and defendant's 17-year-old daughter frequently played together. Defendant had never invited the plaintiff to come to her yard to play, but on several occasions the injured child had entered the property for brief periods of time. Defendant further testified that she had told her 1m-year-old daughter not to have other children play on their property, and that if an invitation ever had been extended to the plaintiff to visit defendants' property, that invitation must have been extended by her 17-year-old daughter.

The plaintiff's sister testified that the defendant had never told her, or told other children in her presence, to leave the defendants' property.

On the evening of the day of the accident, Mrs. Hayes was not at home. Before plaintiff wandered into the area where the dog was chained, she had been playing in defendants' front yard, with several neighborhood children congregated nearby.

Plaintiff's cause of action is based upon the liability of a dog owner as set forth by statute:

'The owner of any dogs which shall without provocation bite any person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of such dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness.

'A person is lawfully upon the private properly of such owner within the meaning of this act when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States of America, or when he is on such property as an invitee or licensee of the person lawfully in possession of the property.' M.C.L.A. § 287.351 (Stat.Ann.1967 Rev. § 12.544).

The trial court, in a written opinion, held that the statute in question made no provision for the extension of an invitation or the granting of a license by one other than one in lawful possession of the property. The court ruled that defendants, as sole owners of the land in question, were the only ones who had lawful possession of the premises. GCR 1963, 517.1.

'The statute in question is remedial in character, and it is to be presumed that the Legislature intended the most beneficial construction of the act consistent with a proper regard for the ordinary canons of construction.' In re Cameron's Estate (1912), 170 Mich. 578, 582, 136 N.W. 451, 453.

The trial court correctly held that statutes which are enacted in derogation of the common law must be strictly construed. Holland v. Eaton (1964), 373 Mich. 34, 39, 127 N.W.2d 892. However, this requirement of statutory construction does not mandate an interpretation of the statute beyond its legislative purpose and plain meaning. M.C.L.A. § 8.3 (Stat.Ann.1969 Rev. § 2.212); In re Cameron's Estate, Supra.

The trial court erred when it held that plaintiff, as a matter of law, could not have been on defendants' property as an implied licensee. We hold that the evidence produced at trial clearly preponderates against this finding of fact. Shaw v. Wiegartz (1965), 1 Mich.App. 271, 135 N.W.2d 565; GCR 1963, 517.1; see also, Authors' Comments in 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), p. 593.

Although the statute does not specifically make provisions for 'implied licensees,' it would be a contortion of the plain meaning of this statute to exclude the subclass of implied invitees and licensees from their generic group. Rather, the plain meaning and application of the statute requires plaintiff to prove that she was either an invitee or licensee, expressed or implied, to fall within the purview of protection created by this statute.

Thus, to recover, plaintiff need only establish by a preponderance of the evidence that she was on the property as a licensee of one in lawful possession of that property. ² One need not be required to own property to be in lawful possession of it. Petrak v. Cooke Contracting Company (1951), 329 Mich. 564, 46 N.W.2d 574. In the instant case, defendants' teenage daughter, although not the owner of the property in question, had a lawful possessory interest in that land. Her control, the crux of possession, was enhanced at those times she was home alone, as on the evening in question.

A licensee has been defined as a 'person who enters on or uses another's premises with the express or implied permission of the owner or person in control thereof * * *.' 17 Michigan Law & Practice, Negligence, § 37, p. 429.

A licensee, as distinguished from an invitee, is one who enters another's land because a personal benefit will be derived by so doing; and while there, his presence is merely tolerated. Dobbek v. Herman Gundlach, Inc. (1968), 13 Mich.App. 549, 554, 164 N.W.2d 685. While a licensee's presence is merely tolerated, the possessor of the land is still required to warn the licensee of known dangers. Dobbek v. Herman Gundlach, Inc., Supra, p. 555, 164 N.W.2d 685; Kroll v. Katz (1965), 374 Mich. 364, 132 N.W.2d 27; Shaw v. Wiegartz, Supra. Further,

'Neither silence, acquiescence, nor permission, however, standing alone, is sufficient to establish an invitation. A license may thus be created, but not an invitation. The infancy of the party injured does not change the situation.' (Emphasis supplied.) Peck v. Adomaitis (1931), 256 Mich. 207, 210, 211, 239 N.W. 278, 279.

The facts disclosed at trial do not fairly support the trial court's conclusion that plaintiff could not be an implied licensee of defendants. Plaintiff often accompanied defendan...