Guenther v. Fohey
| Decision Date | 10 January 1901 |
| Docket Number | 3,369 |
| Citation | 59 N.E. 182,26 Ind.App. 93 |
| Parties | GUENTHER v. FOHEY |
| Court | Indiana Appellate Court |
From the LaPorte Circuit Court.
Affirmed.
W. E Higgins, F. E. Osborn and H. W. Sallwasser, for appellant.
M. Nye and M. R. Sutherland, for appellee.
Appellee brought this action against appellant, defendant below, to recover damages for personal injuries inflicted by the bite of appellant's dog. The cause was put at issue and a trial resulted in a verdict in favor of appellee for $ 200. With the general verdict answers to interrogatories were returned. Appellant moved for judgment on the answers to interrogatories notwithstanding the general verdict, which motion was overruled. The errors claimed are (1) the action of the court in overruling the demurrer of appellant to the complaint; (2) in overruling appellant's motion for judgment on the answers to interrogatories notwithstanding the general verdict; (3) in rendering judgment in favor of appellee over the objection and exception of appellant.
Appellant discusses these alleged errors in the order named, considering the second and third together. The complaint is brief, and omitting the formal parts is, in substance, as follows: On and prior to the 29th day of June, 1897, the defendant kept a dog which was of a fierce and dangerous nature and improper to go at large, and with a propensity to attack and bite mankind. The defendant knew at the said date and prior thereto the nature and propensity of said dog, and wrongfully and negligently permitted it to go at large without proper restraint and confinement; and while so permitted to go at large said dog, without any fault or negligence on the part of the plaintiff, did then and there attack, bruise, and bite the plaintiff, by reason of which, etc. The objection made to the complaint is that its allegations as to the vicious and dangerous character of the dog are conclusions, and not facts. The averments that the dog was fierce and had a propensity to bite mankind, we think, are not open to this objection.
Appellant also claims that the complaint should aver a disposition generally or habit or custom on the part of the dog to bite mankind coupled with appellant's knowledge of this disposition and habit. The propensity of the dog and knowledge of the owner may exist without anyone having been bitten. The complaint avers the vicious propensity of the dog and the knowledge of appellant. These facts are not limited to the date appellee received his injury, but it is averred that both existed at said date and prior thereto. In Graham v. Payne, 122 Ind. 403, at p. 406, 24 N.E. 216, the Supreme Court say: "When the plaintiff alleges the mischievous, or vicious, propensity of the animal the injury resulting therefrom and the scienter, he makes a good case upon paper, and one which the defendant must meet by a denial or an answer which confesses and avoids the alleged cause of action." The court did not err in holding the complaint sufficient.
The second and third specifications of error present substantially the same question, viz.: Did the court err in overruling appellant's motion for judgment on the answers to interrogatories notwithstanding the general verdict? The general verdict finds every material fact necessary to plaintiff's recovery. It finds what appellant claims the answers to interrogatories do not affirmatively show, that is, that appellee was without fault. "Special findings override the general verdict only...
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