Harris v. Hoyt

• Decision Date: 16 November 1915
• Citation: 154 N.W. 842,161 Wis. 498
• Parties: HARRIS v. HOYT.
• Court: Wisconsin Supreme Court

161 Wis. 498

154 N.W. 842

HARRIS

v.HOYT.

Supreme Court of Wisconsin.

Nov. 16, 1915.

Barnes, J., dissenting.

Appeal from Circuit Court, Milwaukee County; John C. Ludwig, Judge.

Action by Jessie Harris against Mrs. M. J. Hoyt. Judgment of dismissal in the civil court of Milwaukee county was reversed on appeal to the circuit court, and defendant appeals. Affirmed.

Action to recover damages resulting from being bitten by a dog kept by the defendant. August 5, 1914, plaintiff desired to visit a Mrs. Karrow, who lived upstairs in a duplex flat; the lower flat being occupied by the defendant. A common door opened from the street into a vestibule three or four feet deep and eight feet wide. From this common vestibule the door to the right led to the flat of the defendant, and the door to the left to the flat upstairs occupied by Mrs. Karrow. The two doors were about a foot apart. Plaintiff had never been in the flat before. After entering the common vestibule, she rang the bell leading to Mrs. Karrow's flat. Mrs. Karrow answered immediately and asked who was there. On being informed, she told plaintiff to come up, and pressed the electric button that released the lock of the door to her flat. The plaintiff heard the click of the released lock, took hold of the left-hand door, which she supposed was the one leading to Mrs. Karrow's flat, but, as it did not readily open, she concluded she was attempting to open the wrong door, so she took hold of the right-hand door, opened it far enough so that the dog kept by the defendant could pass through, which he did and bit her while she still had her hand on the door knob. The defendant was about 60 years old and kept the dog--a French bull--for a companion, as she was left alone a great deal. It had never given any trouble before, except once about 18 months previously, when it was in the house and a boy opened the door and it bit the boy's hand. On the day in question the defendant was in the dining room with the dog, and on hearing a noise at the door she spoke to the dog and said, “There comes Harlowe,” meaning her son, and the dog immediately ran for the door with the result stated. Defendant's door was usually locked, but owing to its swelled condition it had not been shut tight enough to permit the lock to catch at the time of plaintiff's injury.

The action was begun in the civil court, where the jury found: (1) That plaintiff was free from contributory negligence; (2) that the defendant failed to exercise ordinary care in the keeping of the dog, having in mind the prevention of injuries to any person; and (3) damages in the sum of $925.50. The court, however, set aside the verdict and entered judgment dismissing the action. From such judgment plaintiff appealed to the circuit court. That court entered an order reversing the judgment of the civil court, and granted a new trial in the circuit court, from which order the defendant appealed.Cochems & Wolfe, of Milwaukee, for appellant.

Curtis & Mock, of Milwaukee, for respondent.

VINJE, J. (after stating the facts as above).

[1] Defendant correctly contends that section 1620, Stats. 1913, does not impose upon the owner or keeper of a dog an absolute liability to respond in damages to any one bitten by it no matter under what circumstances. The section provides:

“The owner or keeper of any dog which shall have injured or caused the injury to any person or property or killed, wounded or worried any horses, cattle, sheep or lambs shall be liable to the person so injured and the owner of such animals for all damages so done, without proving notice to the owner or keeper of such dog or knowledge by him that his dog was mischievous or disposed to kill, wound or worry horses, cattle, sheep or lambs.”

Its purpose was to abrogate the necessity of alleging and proving scienter on the part of the owner or keeper, not to impose an absolute liability. Schaller v. Connors, 57 Wis. 321, 15 N. W. 389;Meracle v. Down, 64 Wis. 323, 25 N. W. 412;Legault v. Malacker, 156 Wis. 507, 145 N. W. 1081.

[2][3] But it does not follow from this that the circuit court erred in setting aside the judgment of the civil court and in granting a new trial. It was evidently the opinion of the court that a jury might properly find defendant guilty of a want of ordinary care in keeping the dog at home, as she did, where it might injure any stranger who accidently, as the plaintiff did, or otherwise, opened the door to the flat where it was kept. Can we say that such a conclusion was clearly erroneous? In order to reverse we must be able to do that. Plaintiff was not a trespasser at the time she was injured. She was rightfully in the vestibule when the dog bit her. The mistake of opening the wrong door as she did was one that might happen to any one, and...