Flansburg v. Basin
| Decision Date | 31 December 1878 |
| Citation | 3 Bradw. 531,3 Ill.App. 531 |
| Parties | ARTHUR FLANSBURGv.JOHN BASIN. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Henry county; the Hon. ARTHUR A. SMITH, Judge, presiding. Opinion filed May 2, 1879.
Messrs. MOCK & HAND and Mr. THOMAS G. AYRES, for appellant: that under a plea of not guilty in this class of actions, no defense other than such denial is admissible: 1 Addison on Torts, § 585; 2 Whar. on Ev. § 1295.
It was not necessary to prove a series of acts of viciousness: Smith v. Pelot, 2 Str. 1264; Arnold v. Norton, 25 Com. 92; Kittridge v. Elliott, 16 N. H. 77; Loomis v. Terry, 17 Wend. 406; Cockerham v. Nixon, 11 Ired. 269; Mann v. Wieand, 1 Monthly Jur. 94; Worth v. Gilling, L. R. Q. C. P. 1; Judge v. Cox, 1 Stark. 285; Fleming v. Orr, 2 Macq. 25; Meibus v. Dodge, 38 Wis. 300; Rider v. White, 65 N. Y. 54; 1 Addison on Torts. § 290.
After one act of viciousness, if the keeper have notice of such act, and suffer the animal to run at large, he is liable: Laverom v. Mangianti, 41 Cal. 138; Buckly v. Leonard, 4 Denio, 500; Wheeler v. Brandt, 23 Barr, 324; Loomis v. Terry, 17 Wend, 496; Marsh v. Jones, 21 Vt. 378; Popwell v. Pierce, 10 Cush. 509; Sherfay v. Bartlett, 4 Sneed, 58; Burden v. Barnett, 7 Ala. 169.
The gist of the action is the keeping after knowledge of its vicious propensity: May v. Burgett, 9 O. B. 101; Wheeler v. Brandt, 23 Barr, 324.
An instruction that the dog must attack horses attached to vehicles or the jury could not find defendant guilty, limits plaintiff's right of recovery to an extent not warranted in law, and is erroneous; Chittenden v. Evans, 48 Ill. 52; Bradshaw v. Mayfield, 24 Tex. 481; Smithwick v. Indross, 24 Tex. 488; Roots v. Lyner, 10 Ind. 92; Wells on Questions of Law and Fact, § 407.
It is not the duty of the court to instruct when the instruction assumes facts not proved: I. & St. L. R. R. Co. v. Horst, 9 Chicago Legal News, 114; Michigan Bank v. Eldred, 9 Wall. 544; Ward v. U. S. 14 Wall. 28; Railroad Co. v. Gladden, 15 Wall. 401.
The failure of plaintiff to exercise ordinary care, unless such failure contributed to the injury, will not prevent a recovery: Stumps v. Kelly, 22 Ill. 140; T. W. & W. R. R. Co. v. O'Connor, 77 Ill. 391; C. & A. R. R. Co. v. Mock, 72 Ill. 141; Centralia v. Scott, 59 Ill. 129; C. & A. R. R. Co. v. Murray, 62 Ill. 326; Daniels v. Clegg, 27 Mich.
Instructions should be based on evidence: Coughlin v. The People, 18 Ill. 266; Chapman v. Cawrey, 50 Ill. 512.
A contradiction, in order to affect the credibility of a witness, must be on a material point in issue, and the witness must have willfully sworn falsely: Crabtree v. Hagenbaugh, 25 Ill. 235; Meixell v. Williamson, 35 Ill. 529; Brennan v. The People, 15 Ill. 511: Chicago v. Smith, 48 Ill. 107; U. S. Ex. Co. v. Hutchins, 58 Ill. 44; Pope v. Dodson, 58 Ill. 360; 1 Greenleaf's Ev. § 462.
Proof of general bad character is not sufficient to impeach a witness: Frye v. Bank of Illinois, 11 Ill. 332; Eason v. Chapman, 21 Ill. 33; Crabtree v. Kile, 21 Ill. 180; Dimick v. Downes, 82 Ill. 570; 1 Greenleaf's Ev. § 461.
Upon the question of damages: Fulsom v. Town of Concord, 46 Vt.
Appellant was entitled to a new trial on showing that one of the jurors had falsely stated on his examination that he had no knowledge of the case about to be submitted, when in fact he had full knowledge of all the facts: Nomaque v. The People, Breese, 145; Guykowski v. The People, 1 Scam. 476; Smith v. Eames, 3 Scam. 76; Sellars v. The People, 3 Scam. 412; Vennum v. Harwood, 1 Gilm. 659; Swarnes v. Sitton, 58 Ill. 155; Essex v. McPherson, 64 Ill. 349; Spurck v. Crook, 19 Ill. 415.
It is sufficient if enough of plaintiff's allegations is proved to afford ground for maintaining the action: 1 Phillip on Ev. 504; 2 Chit. Pl. 597; Pickering v. Orange, 1 Scam. 338; Panton v. Holland, 17 Johns. 92.
Where it is apparent the jury misunderstood the evidence or were misled by the instructions, a new trial should be given: Higgins v. Lee, 16 Ill. 495; Robertson v. Dodge, 28 Ill. 161; Southworth v. Hoag, 42 Ill. 446; Haycroft v. Davis, 49 Ill. 445; Booth v. Hyms, 54 Ill. 363; C. B. & Q. R. R. Co. v. Stump, 55 Ill. 367; R. R. I. & St. L. R. R. Co. v. Coultas, 67 Ill. 398.
Messrs. SHEPARD & MARSTON, for appellee; that where the evidence is conflicting, the verdict will not be set aside unless clearly against the weight of evidence, cited C. & R. I. R. R. Co. v. Hutchins, 34 Ill. 108; C. & R. I. R. R. Co. v. Crandall, 41 Ill. 234; T. P. & W. R'y Co. v. McClannon, 41 Ill. 238; Davis v. Hoeppner, 44 Ill. 306; Hope Ins. Co. v. Lonegan, 48 Ill. 49; Sawyer v. Daniels, 48 Ill. 269; C. F. R. & B. Co. v. Jameson, 48 Ill. 281; Palmer v. Weir, 52 Ill. 341; Varner v. Varner, 69 Ill. 445; Kightlinger v. Egan, 75 Ill. 141; Chapman v. Burt, 77 Ill. 337; Summers v. Stark, 76 Ill. 208; T. W. & W. R. R. Co. v. Moore, 77 Ill. 217; Bishop v. Busse, 69 Ill. 403; City of Ottawa v. Sweely, 65 Ill. 434.
Even where the evidence was such that the jury would have been justified in finding the other way: C. & N. W. R. R. Co. v. Ryan, 70 Ill. 211; Papineau v. Belgrade, 81 Ill. 61; McClelland v. Mitchell, 82 Ill. 35; Corwith v. Colter, 82 Ill. 585.
Under the general issue in this case defendant could prove any matter tending to show that his dog did not commit the injury: 1 Chi. Pl. 794; Dean v. Blackwell, 18 Ill. 336.
The owner of domestic animals is liable when, knowing their vicious habits, he keeps them, whether negligent or not: Popplewell v. Pierce, 10 Cush. 509; 1 Hilliard on Torts, 569; Cord v. Case, 5 C. B. 622; 1 Addison on Torts, 283.
But this does not relieve the party injured from the exercise of ordinary care: Kightlinger v. Egan, 65 Ill. 235; Wormley v. Gregg, 65 Ill. 251.
The instruction in regard to competency of the witnesses was correct: Springdale Cem. Asso'n v. Smith, 24 Ill. 480; Miller v. People, 39 Ill. 457; Crabtree v. Hagenbaugh, 25 Ill. 233.
It is not proper to repeat in an instruction a principle already given in an instruction: Chicago v. Hesing, 83 Ill. 204; Lonergan v. Courtney, 75 Ill. 580.
Appellant's instruction was properly refused, as it gives undue prominence to parts of the testimony: Hewitt v. Johnson, 72 Ill. 513; Holmes v. Hale, 71 Ill. 552; Ogden v. Kirby, 79 Ill. 555.
Affidavits of jurors cannot be received to show misconduct on the part of one of their number: Cleem v. Smithe, 5 Hill, 560; Dorr v. Fenno, 12 Pick. 521; Hannum v. Belchertown, 19 Pick. 313; Murdock v. Sumner, 22 Pick. 157; Cook v. Castner, 9 Cush. 278; Folsom v. Manchester, 11 Cush. 334; B. & W. R. R. Co. v. Dunn, 1 Gray, 105; Chadbourn v. Franklin, 5 Gray, 212; Allison v. The People, 45 Ill. 37; Peck v. Brewer, 48 Ill. 54.
Appellant brought an action on the case against appellee, alleging that he kept a ferocious and mischievous dog, knowing that he was accustomed to attack, chase and bite horses, etc.
In the first count the word “horses” alone is used. In the second the words ““horses as well as other domestic animals” are used, and in the third count the words are “horses and teams attached to vehicles.” It is also alleged that appellant on May 25th, 1875, was going home from a debate at the school house one night, on horse-back, and that when passing along the road in front of appellee's house, the said dog came out and bit his horse, and that thereupon the horse threw him and broke his leg. The verdict was in favor of appellee.
Basin and his son-in-law, Robert Julian, lived opposite each other, and the two together had three dogs; appellee had a large black and white one and a little rat terrier, and Julian had a common yellow shepherd slut. All three were either principals or accessories in the attack--all joined in barking extensively. Appellant says however, that it was the large black and white one which bit his horse, and he is the only person who could tell how it was. It is not necessary to consider whether there can be joint liability of owners, for a joint attack of their dogs; as it is not so with cattle, it is probably not so with dogs. Westgate v. Carr, 43 Ill. 450.
We are not disposed to find any fault with the court below for allowing it to be proved whether the slut or the large black and white dog actually did do the biting, by showing which one was the more likely to have done so, by proving which one's daily habits of life were of a biting, and which of a mere barking character. If the difference of size and sex would raise any presumptions, it would seem proper to explain and rebut them in this way, as tending to show that appellant was mistaken.
The questions of fact are quite elaborately discussed, but we deem it only necessary to say on that subject, that if there were no erroneous ruling, a verdict either way should stand, unless one for plaintiff were for an excessive amount, and that in such case of conflict there should be reversal for error in instructions.
If the allegations in the declaration had been that appellee was the owner of the dog, instead of that he kept the dog, it would seem under the authority of Wormley v. Gregg, 65 Ill. 251, that the case for appellant would have been stronger. Before examining the instruction, we may say on the subject of dogs generally, that their rights are better protected now than they were in more barbarous times. In Smith v. Pelah, 2 Strange, 1264, the Chief Justice ruled that “if a dog has once bit a man, and the owner having notice thereof keeps the dog and lets him go about or lie at his door--an action will lie against him at the suit of a person who is bit, though it happened by such person's treading on the dog's toes, for it was owing to his not hanging the dog on the first notice; and the safety of the king's subjects ought not afterwards to be endangered.”
In Kightlinger v. Egan, 65 Ill. 235, Justice Sheldon, in a more just and humane spirit, ruled that a dog wantonly kicked, might lawfully bite in...
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