Elliott v. Herz
| Decision Date | 21 April 1874 |
| Citation | 29 Mich. 202 |
| Court | Michigan Supreme Court |
| Parties | Isaac Elliott v. August Herz |
Heard January 14, 1874
Error to Washtenaw Circuit.
Action under the statute (C. L. 1871, § 2065), for damages done by defendant's dog. Plaintiff brings error Affirmed.
Judgment affirmed.
E Thatcher, for plaintiff in error.
Lawrence & Sawyer, for defendant in error.
Christiancy, J., did not sit in this case.
The statute which makes the owner of a dog liable in double damages for the killing, wounding or worrying by him of domestic animals, is penal in its consequences, and cannot be supposed to have been designed for cases in which the owner was in no manner in fault. Damages in excess of the real injury are awarded in some cases because the conduct of the party has been peculiarly malicious, vindictive or reckless, but never where the injury has proceeded from his misfortune rather than from any blamable misfeasance or nonfeasance.
By the common law the owner of a dog was not liable for an injury done by him, unless it could be shown that the owner was previously aware of his mischievous propensity. This rule operated harshly in many cases, because the evidence of such propensity would generally be in the knowledge mainly or exclusively of the owner himself, and it often occurred that his misconduct in failing to restrain a dog he knew to be vicious could not be shown. The statute changes this rule, and makes the owner liable without this proof; and it seems to assume that in such a case the owner is presumptively in fault, for the double damages could not be justified on any other assumption. But I do not see how this statute can be held to embrace the case of a rabid dog. There can be no presumption that his rabid and uncontrollable condition is the owner's fault, unless he has had reason to believe that the dog had been bitten by a rabid creature, and had neglected to restrain or destroy him afterwards; and in such a case the common law would afford suitable remedy.-- Woolf v. Chalker, 31 Conn. 121 at 128. The injury from the bite of a rabid dog must be classed with those from inevitable accident, which the law always leaves to rest where they chance to fall, because, as no one was in fault, there is no basis for an assessment of damages against any one. And if the statute in question could be held imperatively applicable to all cases of injury to domestic animals by dogs, it might well happen that the dog of A, becoming rabid from the bite of the dog of B, and in his frenzy destroying the sheep of B, would render his owner liable to exemplary damages, when, if any presumption of fault should be indulged against any one, it should be against B himself, whose dog communicated the madness.
I find in the statute nothing beyond a purpose to give adequate remedy without the necessity which existed at the common law, of proving the owner's knowledge of his dog's vicious habits. The pith of the statute is in the words, "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." This manifestly refers to a vicious and destructive habit, from indulgence in which the mischief has resulted; and is inapplicable to the case of a rabid dog. What he does in his frenzy is wholly involuntary, and there is no such thing as his being accustomed to the mischief of madness, for the frenzy itself exists but once, and terminates his life. The phraseology of the statute is not suited to such a case, and it seems to me reasonable to suppose that if the Legislature had purposed to give a remedy against the owner of a rabid dog for mischief done by him, especially if it was to be punitory in its nature, such remedy would have been given in more distinct terms, and been made to depend upon the owner's misconduct or negligence. I therefore think the circuit judge ruled correctly, and that the judgment should be affirmed.
DISSENT BY: Graves
DISSENT
The plaintiff brought this suit on the statute (Comp. L., § 2065) to recover on account of injuries done to his sheep by the defendant's dog.
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...would suffice to charge the owner or keeper with responsibility. See Buck v. Brady, 110 Md. 568, 73 A. 277,132 Am. St. Rep. 459;Elliott v. Herz, 29 Mich. 202;Clinkenbeard v. Reinert, 284 Mo. 569, 225 S. W. 667, 13 A. L. R. 485;Legault v. Malacker, 156 Wis. 507, 145 N. W. 1081. See, also, Ha......
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...and it often occurred that his misconduct in failing to restrain a dog he knew to be vicious could not be shown." Elliott v. Herz, 29 Mich. 202, 202-203 (1874). The first such "dog-bite statute" was apparently 1850 P.A. 161. See Nicholes, supra, 396 Mich. at p. 58, 237 N.W.2d 468. The 1915 ......
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