Fye v. Chapin

• Decision Date: 14 November 1899
• Court: Michigan Supreme Court
• Parties: FYE v. CHAPIN.

80 N.W. 797

121 Mich. 675

FYE v. CHAPIN.

Supreme Court of Michigan

November 14, 1899

Error to circuit court, Kalamazoo county; George M. Buck, Judge.

Action by Ruth L. Fye against Charles Chapin for personal injuries caused by defendant's dog. Judgment for plaintiff, and defendant brings error. New trial granted on condition that plaintiff does not remit a part of the judgment.

N.H. Stewart and Edward Bacon, for appellant.

Gore &amp Harvey (Frank E. Knappen, of counsel), for appellee.

MONTGOMERY J.

The defendant was the owner of a large St. Bernard dog. On the 16th of December, 1897, two servant girls in defendant's employ called on the mother of plaintiff, accompanied by the dog. The dog was admitted with them into the house, and while the two callers and Mr. and Mrs. Fye engaged in conversation, the plaintiff, a child 4 years and 4 months of age, was seated on the floor of the adjoining room, playing with her dolls. She was suddenly assaulted by the dog in a very ferocious manner, bitten on the face and on the scalp. The scalp was torn loose, resulting in a considerable loss of blood, and, it is claimed, permanent disfigurement. The plaintiff also gave testimony tending to show that extreme nervousness followed the shock and fright, and that in the following April she had spasms, which were epileptic; and also offered medical testimony tending to show that epilepsy is incurable, and that the most probable cause of the attack in April was the attack of the dog. That extreme fright or the injury to the scalp might either result in epilepsy. The defendant's testimony tended to show that the spasms were traceable to causes entirely distinct from the injury by defendant's dog. The jury returned a verdict for $10,000, and judgment for double this amount was entered by the court. The defendant brings error, assigning error on no less than 98 rulings of the trial judge. The questions which are of sufficient importance to merit special discussion are not, however, numerous, and, while none have escaped examination, we shall pass over such as are not specially discussed with the statement that we find no error in the ruling of the learned judge in respect to them.

1. The action is based on Act No. 161 of 1850, being section 5593, Comp. Laws 1897, which reads as follows: 'If any dog shall have killed or assisted in killing, wounding or worrying any sheep, lamb, swine, cattle or other domestic animal, or that shall assault or bite or otherwise injure any person while traveling in the highway, or out of the enclosure of the owner or keeper of such dog, such owner or keeper shall be liable to the owner of such property or person injured, in double the amount of damages to be sustained, to be recovered in an action of trespass or on the case; and 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; and upon the trial of any cause mentioned in this section, the plaintiff and defendant may be examined under oath, touching the matter at issue, and evidence may be given as in other cases; and if it shall appear to the satisfaction of the court by the evidence, that the defendant is justly liable for the damages complained of, under the provisions of this act, the court shall render judgment against such defendant for double the amount of damages proved, and costs of suit but in no case shall the plaintiff recover more than five dollars costs.' It is contended that this act is unconstitutional, in that it confers upon the circuit judge power to act as a chancellor in a suit at law in so far as he exercises the authority to double the damages. The construction which defendant's counsel gives to the statute is that, before the court shall double the damages, it must appear satisfactorily to the court that the defendant is justly liable for the damages complained of, and that the judge is, by the terms of the statute, to act independently of the jury in determining the amount of damages proved. The statute has been enforced in a number of cases. Swift v. Applebone, 23 Mich. 252; Elliott v. Herz, 29 Mich. 202; Monroe v. Rose, 38 Mich. 348; Thompen v. Verhage, 54 Mich. 305, 20 N.W. 53; Burnham v. Strother, 66 Mich. 519, 33 N.W. 410. The questions now suggested have not heretofore been raised by either the court or counsel. This fact does not, of course, conclude the defendant. The presumption is strong, however, that the statute, which has been operated under for nearly half a century, has on various occasions, when it has been enforced, been scrutinized by both court and counsel, and found not open to attack. The statute is inartificially drawn, but we think it open to a construction which is not inconsistent with the proper exercise of the distinct functions which the law casts upon the judge and jury respectively. The liability is declared to be in double the damages sustained. The presumption is that those damages are to be ascertained as in ordinary cases,--if the trial be before a jury, by the jury; and by the court when the jury is dispensed with. While the latter portion of the section is more appropriate to a trial before the court without a jury, we think the word 'court' may be construed to mean the court acting through all of its instrumentalities, which includes the jury, and, so construed, the act is operative. It is competent for the legislature to provide for doubling damages in this class of cases. Trompen v. Verhage, 54 Mich. 304, 20 N.W. 53; Cummings v. Riley, 52 N.H. 368; Chickering v. Lord (N. H.) 32 A. 773; Fitz Gerald v. Dobson, 78 Me. 559, 7 A. 704; Barrett v. Railroad Co., 3 Allen, 101.

2. The defendant asked the court to charge that, as the plaintiff's parents had the dog in their home at the time of the assault, and had knowledge of the nature of the dog they were guilty of gross negligence directly contributory to the injury that the child received, and that for this reason the plaintiff was not entitled to recover. It is insisted in this court that the negligence of the plaintiff's parents was the proximate cause of the injury. In the same connection it is insisted that the servant girls, in taking the dog into the presence of plaintiff's parents, were disobeying instructions, and that the court was in error in refusing to charge that the reckless negligence of defendant's hired girls in disobedience of his order could not be imputed to him. We think it cannot be said that the plaintiff's parents were in any sense the keeper of this dog. The...