Dobrin v. Stebbins

• Decision Date: 11 March 1970
• Docket Number: Gen. No. 53188
• Citation: 122 Ill.App.2d 387,259 N.E.2d 405
• Parties: William DOBRIN, a minor by Sidney Dobrin, his Father and Next Friend, Plaintiff-Appellee, v. Elmer C. STEBBINS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 405

259 N.E.2d 405

122 Ill.App.2d 387

William DOBRIN, a minor by Sidney Dobrin, his Father and Next Friend, Plaintiff-Appellee, v. Elmer C. STEBBINS, Defendant-Appellant.

Gen. No. 53188.

Appellate Court of Illinois, First District, Fourth Division.

March 11, 1970.

Supplemental Opinion on Denial of Rehearing May 13, 1970.

Thomas P. Cernek, Chicago, for appellant

No appearance for appellee.

LEIGHTON, Justice.

In a non-jury trial, plaintiff recovered a judgment against defendant for personal injuries he suffered when he was bitten by defendant's dog. Although plaintiff, who is the appellee in these proceedings has not filed a brief, we will review this appeal on the merits. Daley v. Jack's Tivoli Liquor Lounge, Inc., Ill.App., 254 N.E.2d 814.

The facts are not in dispute. On July 16, 1964 defendant was the owner of a toy German Shepherd. He chained it to a pipe so that the dog was confined within defendant's property at 6225 West 79th Street in the City of Chicago. Plaintiff, then 17 years of age, was selling magazines. There was no sign or posted notice on defendant's property warning salesmen or others to keep off. Plaintiff went to defendant's home. He walked up a dirt path that led from the sidewalk. When plaintiff was within five or ten feet of the door, defendant's dog jumped on plaintiff, bit him in the abdomen and on the thigh. After getting away, plaintiff was taken to a nearby clinic where he received treatment for his injuries. Later in the day he visited his family doctor who replaced the bandages and gave him a tetanus shot. Pain from the dog bites lasted three or four days. Plaintiff's doctor submitted a bill which was paid.

Plaintiff filed suit against defendant and invoked what is colloquially the 'Dog Bite Statute,' Ill.Rev.Stat.1963, ch. 8 sec. 12d which provides:

Dogs attacking or injuring person--Liability of owner. If a dog, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. The term 'owner' includes any person harboring or keeping a dog. The term 'dog' includes both male and female of the canine species.

After hearing evidence, the trial judge awarded plaintiff damages in the sum of $750.00. Defendant appeals. He contends that plaintiff was a trespasser when he entered defendant's property; therefore no judgment could be recovered under the statute. In the alternative defendant contends that the damage award was excessive.

A trespasser is one who does an unlawful act or a lawful act in an unlawful manner to the injury of the person or property of another. 87 C.J.S. Trespass § 1; see People v. Goduto, 21 Ill.2d 605, 174 N.E.2d 385. By this definition, plaintiff was not a trespasser on defendant's land when he went there during the ordinary hours of the day to solicit magazine subscriptions.

An owner of property who provides a path or walk from the public way to his door, without some indication (sign, posting of notice or words) warning away those who seek lawful business with him extends a license to use the path or walk during the ordinary hours of the day. Persons who thus make use of the path or walk are licensees. Restatement, Second, Torts, sec. 332, Comment b; Stacy v. Shapiro, 212 App.Div. 723, 209 N.Y.S. 305 (1925); Reuter v. Kenmore Building Co., 153 Misc. 646, 276 N.Y.S. 545 (1934). Our decision in Messa v. Sullivan, 61 Ill.App.2d 386, 209 N.E.2d 872 supports this view. Therefore, plaintiff was a licensee on defendant's land when he was bitten by defendant's dog. He was in a '(p)lace where he may lawfully be. * * *' within the meaning of Ill.Rev.Stat.1963, ch. 8, sec. 12d.

This being so, proof that plaintiff while peaceably conducting himself and without provocation, was injured by defendant's dog justified entry of judgment in favor of plaintiff and against defendant. Beckert v. Risberg, 50 Ill.App.2d 100, 199 N.E.2d 811; Bailey v. Bly, 87 Ill.App.2d 259, 231 N.E.2d 8.

The damages the trial judge awarded plaintiff were within the limits of fair and reasonable compensation. Johnson v. Eckberg, 94 Ill.App. 634; Sesterhenn v. Saxe, 88 Ill.App.2d 2, 232 N.E.2d...