Janssen v. Voss

• Decision Date: 09 February 1926
• Parties: JANSSEN v. VOSS.
• Court: Wisconsin Supreme Court

189 Wis. 222

207 N.W. 279

JANSSEN

v.VOSS.

Supreme Court of Wisconsin.

Feb. 9, 1926.

Appeal from Circuit Court, Brown County; Henry Graass, Judge.

Action by Robert Janssen, by John J. Janssen, his guardian ad litem, against Pauline Voss. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instructions.Silverwood & Fontaine, of Green Bay, for appellant.

Cady, Strehlow & Kaftan, of Green Bay, for respondent.

OWEN, J.

The defendant is a widow, and the mother of two children, the older, William B., being of the age of 14 years at the time of the occurrence giving rise to this action. She had purchased and given to said son William B. a pure bred collie dog. The registry certificate shows the ownership of said dog registered in the name of William B., and the city license also shows the ownership to have been in said son. Defendant and her two children comprised her immediate entire family.

During the latter part of May, 1924, a brother of defendant died, and on June 1, 1924, defendant left Green Bay to attend the funeral in Michigan. She caused the dog to be placed in a dog hospital in Green Bay, to be kept during her absence. She left her two children at the home of Mr. and Mrs. Frank Kress, to be cared for until her return. A couple of days after the defendant's departure the son William B. complained to Mrs. Kress that the dog was being misused at the hospital. Mrs. Kress gave him two dollars with which to pay the accumulated hospital charges for the dog. The boy took the dog from the hospital, brought it to the Kress home, and tied it to a clothes line in the back yard. The plaintiff, an infant 17 months of age, whose parents resided on a lot adjoining the Kress home, wandered into the Kress yard, and was bitten by the dog. This action was brought to recover damages resulting from such bite.

[1] The case was tried before a jury, and a special verdict returned, by which it was found that the defendant did not fail to exercise ordinary care in placing the dog for keeping during her absence, and damages were assessed in the sum of $500. The court held the question whether the defendant had exercised ordinary care in placing the dog for keeping during her absence was immaterial; that section 174.02, Stats., imposes an absolute liability upon the owner or keeper of any dog which has injured or caused the injury of any person, irrespective of the degree of care which the owner or keeper of such dog may have exercised, and rendered judgment in favor of the plaintiff.

[2] The trial court was no doubt correct in holding that the degree of care exercised by the defendant in providing for the keeping of the dog was immaterial. Le Gault v. Malacker, 166 Wis. 58, 163 N. W. 476, 1 A. L. R. 1109. While it is stated in that case that conduct on the part of the injured person inviting an assault by the dog might constitute a defense, no such conduct on the part of the injured child is relied upon in this case, and the sole question presented is whether the defendant was the keeper of the dog at the time of the injury. That she was the keeper of the dog up to the time of her departure to attend the funeral is conceded. She bought the dog for her son, brought it to her home, and it had there been maintained at her expense and under her control for a year prior thereto. Upon her departure she directed what should be done with the dog. It may here be stated that she left explicit instructions...