Grummel v. Decker

• Decision Date: 03 June 1940
• Docket Number: No. 56.,56.
• Citation: 294 Mich. 71,292 N.W. 562
• Parties: GRUMMEL v. DECKER et ux. (two cases).
• Court: Michigan Supreme Court

294 Mich. 71

292 N.W. 562

GRUMMEL

v.DECKER et ux. (two cases).

No. 56.

Supreme Court of Michigan.

June 3, 1940.

Action by Edna A. Grummel against John W. Decker and Norma E. Decker, his wife, to recover for injuries sustained by the plaintiff when she was bitten by a dog belonging to Norma E. Decker, and action by Eugene P. Grummel against John W. Decker and Norma E. Decker, his wife, to recover for loss of services of plaintiff's wife because of the dog bites. The actions were consolidated. From judgments in favor of the plaintiffs, the defendants appeal.

Judgments reversed.Appeal from Circuit Court, Wayne County; James E. Spier, judge.

Argued before the Entire Bench.

Leon Dreifuss of Detroit, for appellants.

Fernand W. Miller, of Detroit, for appellees.

POTTER, Justice.

October 22, 1937, defendant Norma E. Decker was the owner and keeper of a dog. Defendants moved into the lower flat of a building, the upper flat of which was occupied by plaintiffs, and brought the dog with them. Subsequently plaintiff Edna A. Grummel began visiting defendants. On the day in question she visited them and stooped over to play with the dog which bit her upon the lip and chin and also bit her fingers. Two suits were instituted because of this injury, one by the plaintiff Edna A. Grummel against defendants, and one by her husband, Eugene P. Grummel, against defendants for loss of services. These cases were consolidated and plaintiff Edna A. Grummel recovered a judgment in the sum of $400, and her husband obtained a judgment in the sum of $475. Defendants appeal claiming the court erred in finding defendants should have taken necessary precautions to insure plaintiff from being injured, that both or either one of defendants was an insurer that plaintiff would not be injured by the dog, that plaintiff was entitled to recover regardless of whether or not she excited or aggravated the dog; in entering a judgment against defendant John W. Decker; and in entering a judgment against defendants jointly.

The trial court found:

(a) ‘There has not been sufficient testimony to satisfy this court that the defendants' dog was of a vicious, dangerous, or ferocious nature with any general propensity or inclination toward biting mankind, and there would, therefore, be no duty on the part of the defendants to keep such animal muzzled and confined at all times in the presence of other people;'

(b) ‘A mere warning to the plaintiff to stay away from the animal is not in the opinion of this court sufficient fulfilment of the duties thus imposed upon the owner of the animal, since the owner of such an animal stands more in the position of an insurer against any injuries on the part of anyone permitted in the animal's presence;'

(c) ‘Her thoughtless or perhaps unconscious action in leaning forward to pet the animal, in spite of any previous warning, was not such an act as could be said to be an aggravation or an excitement of the animal so as to bar her recovery under any of the decisions cited.'

Many cases are cited which arose under Act No. 161, Laws 1850, 2 Comp.Laws 1915, § 7270, under which it was held plaintiff had a right of action without requiring proof of knowledge on the part of the defendant of the dog's habit to do such damage or mischief. Fye v. Chapin, 121 Mich. 675, 80 N.W. 797;Wojewoda v. Rybarczyk, 246 Mich. 641, 225 N.W. 555.

Act No. 339, Pub.Acts 1919, as amended, is now in force, and Act No. 161, Laws 1850, was expressly repealed by Act No. 309, Pub.Acts 1929. The applicable statute provides the common-law liability of the owner of a dog remains, and that nothing in the statute shall be construed as limiting such common-law liability. 1 Comp.Laws 1929, § 5273, Stat.Ann. § 12.539.

The question is, what is the common-law liability of the owner of a dog? In Beck et al. v. Dyson, Campbell's Rep. 198, plaintiff was seriously bitten and injured by a dog which was of a fierce and savage disposition and was generally tied up. There was no proof of his having bitten any other person. Lord Ellenborough held the evidence was insufficient and directed a nonsuit. In Strubing v. Mahar, 46 App.Div. 409, 61 N.Y.S. 799, the court approved the common-law rule that if damage be done by any domestic animal kept for use or convenience, the owner is not liable to an action on the ground of negligence without proof that he knew the animal was accustomed to do mischief. Jenkins v. Turner, 1 Ld.Raym. 109, 91 Eng.Rep. 969; Rex v. Huggins, 2 Ld.Raym. 1574, 1583, 92 Eng.Rep. 578; Buxendin v. Sharp, 2 Salk. 661, 91 Eng.Rep. 564; Fowler v. Helck, 278 Ky. 361, 128 S.W.2d 564.

The basis of plaintiffs' right to recover is negligence. Negligence consists in the want of that reasonable care which would be exercised by a person of ordinary prudence under all the existing circumstances and in view of the probable danger or injury. Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich. 99. The burden of proving or establishing plaintiff Edna A. Grummel's freedom from negligence rests upon her. Neither party makes out a cause of action until it is shown that she exercised due care and that the defendant did not. The absence of contributory negligence on the part of the plaintiff is, therefore, just as essential an element in the cause of action as the negligence of the defendants and just as clearly constitutes a necessary part of plaintiff's case; and until he has shown it, or until it in some way appears from the evidence, he does not make a prima facie case. If there was no evidence tending to establish this freedom from contributory negligence upon the part of the plaintiff, there was nothing upon which the jury could find a verdict. Lake Shore & M. S. R. R. Co. v. Miller, 25 Mich. 274. The trial court found: ‘There has not been sufficient testimony to satisfy this court that the defendants' dog was of a vicious, dangerous, or ferocious nature with any general propensity or inclination toward biting mankind, and there would, therefore, be no duty on the part of the defendants to keep such animal muzzled and confined at all time in the presence of other people.'

In all cases arising under the common law, it is necessary for the plaintiff to aver and prove scienter. That is, that the dog owned by the defendants was of a dangerous character and that the defendants knew it.

‘Scienter is not a word of mystery, or magic meaning. It is merely an expressive word retained from the old Latin forms of pleading signifying in the connection commonly used that the alleged crime or tort was done designedly, understandingly, knowingly, or with guilty knowledge. If necessary to affirmatively negative the supposition of ignorant innocence under the facts alleged in this...