Ferguson v. Gangwer
| Decision Date | 17 November 1939 |
| Citation | 192 So. 196,140 Fla. 704 |
| Parties | FERGUSON v. GANGWER. |
| Court | Florida Supreme Court |
Rehearing Denied Dec. 8, 1939.
Error to Circuit Court, Palm Beach County; C. E. Chillingworth Judge.
Action to recover damages for personal injuries resulting from attack and bite of a french bull dog by Earl C. Gangwer against Harold E. Ferguson. To review a judgment for plaintiff, defendant brings error.
Affirmed.
Elmore Cohen, Of West Palm Beach, for plaintiff in error.
Fulton & Jacobs, of West Palm Beach, for defendant in error.
Defendant in error brought a common law action against the plaintiff in error to recover damages for personal injuries resulting from an attack and bite of a french bull dog belonging to the latter. A demurrer to the declaration was overruled, a number of pleas were filed, and a demurrer to the third plea was sustained. The trial resulted in a verdict and judgment for the plaintiff, to which the defendant took writ of error.
It is first contended that the declaration was fatally defective in that it did not allege that defendant's bull dog was vicious and that he (defendant) had knowledge of has vicious propensity.
The declaration was in three counts, the first of which contained no allegation with reference to the vicious propensity of the dog but the second and third counts do contain such allegations. As a common law declaration, allegations of the kind contended for were essential but they were not necessary in this case since Section 7044, Compiled General Laws of 1927, provides that owners of dogs shall be liable for any damages done by them to domestic animals or persons. Defendant was on knowledge of this statute and was responsible for any damage done by his dog to the plaintiff. Kleybolte v. Buffon, 89 Ohio St. 61, 105 N.E. 192.
Even if an allegation of the kind contended for was necessary, the declaration in question is not fatally defective because two of the counts obtain such allegations and there is no indication as to which count the jury based its verdict on. McNeil v. Webeking, 66 Fla. 407, 63 So. 728. The second and third counts were ample to meet this objection.
It is next contended that the trial court erred in his order striking defendant's third plea to the declaration.
This plea has been examined and found to contain no defense that could not have been offered under the plea of not guilty so the decree striking it was free from error. Shelfer v American Agricultural Chemical Co., 113 Fla. 108, 152 So. 613.
It is also contended that a judgment of $1500 was excessive in view of the damages shown.
The record discloses that defendant's bull dog ran out on the street as plaintiff was passing defendant's place and...
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Vandercar v. David
...the defense of assumption of risk can be raised. Section 767.01 eliminated scienter as a necessary element for liability. Ferguson v. Gangwer, 140 Fla. 704, 192 So. 196; Romfh v. Berman, supra. But the fact that liability is imposed by statute, and not based on negligence, does require reje......
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Stickney v. Belcher Yacht, Inc.
...cases relied upon by Romfh for the proposition that the statute relieved a plaintiff of a burden to prove scienter is Ferguson v. Gangwer, 140 Fla. 704, 192 So. 196 (1939). Ferguson is particularly significant for two reasons (1) it was authored by Chief Justice Terrell who also authored Ro......
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Anderson v. Walthal
...on the part of the agent of the dog's viciousness, since scienter is the gist of a common law claim for damages. Ferguson v. Gangwer, 140 Fla. 704, 192 So. 196 (1939). In that neither Walthal nor Hannon were the owners of the dog, it is clear that Section 767.04, Florida Statutes, placing l......
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Ferreira v. D'Asaro, 62-653
...47 So.2d 298; 2 Am.Jur., Animals, § 52; 4 Am.Jur.2d, Animals, § 102; 3 C.J.S. Animals § 149; 39 A.L.R. 352, 360-364. Cf. Ferguson v. Gangwer, 140 Fla. 704, 192 So. 196. In 2 Am.Jur., Animals, § 52, supra, it is said: 'The rule that the owner or keeper of wild animals is absolutely liable fo......