Kennett v. Engle

• Decision Date: 02 July 1895
• Citation: 63 N.W. 1009,105 Mich. 693
• Court: Michigan Supreme Court
• Parties: KENNETT v. ENGLE.

63 N.W. 1009

105 Mich. 693

KENNETT v. ENGLE.

Supreme Court of Michigan

July 2, 1895

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

Action by Edward Kennett against Washington A. Engle for injuries caused plaintiff through being bitten by defendant's dog. Judgment was rendered for plaintiff, and defendant brings error. Reversed.

Boudeman & Adams, for appellant.

Titus &amp McNeil (Frank E. Knappen, of counsel), for appellee.

MONTGOMERY J.

The plaintiff recovered a judgment for injuries arising from the bite of a dog. The evidence tended to show that the defendant was the keeper of the dog; that he was a physician and druggist at Hartford; that the plaintiff went upon defendant's premises to consult him as a physician; that he was bitten by the dog; and that, as a result of the injury, he was prevented from following his business as a laborer for a considerable length of time. The judgment recovered was for $200. Defendant brings error. We shall pass over many of the assignments of error, for the reason that in our judgment, they fall within established rules. We shall notice those which we think present questions which call for discussion.

The defendant offered to show upon the cross-examination of the plaintiff's witnesses, and by affirmative testimony, the character of the dog in question as having a kind and peaceable disposition; and perhaps the most important question in the case is whether this testimony was admissible. It is undoubtedly the law-and the charge of the court so laid it down-that, in addition to the fact of the injury to the plaintiff from the bite of the dog, it was incumbent upon the plaintiff to prove that the dog had on previous occasions manifested a vicious disposition indicating a disposition to bite mankind, and that the defendant had knowledge or notice of the fact. It is contended by the defendant that there was not sufficient testimony to establish these two propositions, but, without setting it out at length in this opinion, we think there was such testimony to go to the jury. Where these facts are shown, it seems, on authority, that it is immaterial what the general character of the animal is. If he has manifested a disposition to bite mankind, the law casts the burden upon the owner or keeper to take measures to see to it that the animal is so restrained that he cannot do an injury to another. Some of the cases have gone great length in this direction. In Smith v. Pelah, 2 Strange, 1264, it was said: "If a dog has once bit a man, and the owner, having notice thereof, keeps the dog, and lets him go about or lie at his door, an action will lie against him at the suit of a person who is bit, though it happened by such person's treading on the dog's toes; for it was owing to his not hanging the dog on the first notice. And the safety of the king's subjects ought not afterwards to be endangered." This is an extreme case, and perhaps should not be followed, and was not followed by the circuit judge in the present case, for he charged the jury, in effect, that, if the injury resulted from any fault of the plaintiff, he could not recover. But in two well-considered cases it has been determined that where the facts concur of previous manifestations of malicious disposition by the dog, and knowledge of this fact in the keeper, the general peaceable disposition of the dog from thence on becomes immaterial. See Buckley v. Leonard, 4 Denio, 500, and Mann v. Weiand, 81 Pa. St. 243.

It is contended that, where the evidence is in dispute as to whether the facts of notice and previous manifestation of disposition exist, such testimony is admissible as bearing upon the probability of the main facts. We would say the better statement would be that, where the acts sought to be shown are such as to characterize the acts proven by the plaintiff, they are admissible. To illustrate, there was evidence given in the present case by a young man, Roy Andrews, that he visited the store of the defendant on one occasion, and that the dog, without provocation, set upon him, and chased him about the store, until the defendant spoke to him and quieted him. For the purpose of showing that this attack of the dog was playful, and not vicious, defendant called witnesses to show that boys were accustomed to come into the store and play with the dog. This testimony, we think, was competent, and the circuit judge received it for that purpose. Complaint is made that the defendant was not permitted to show this by the cross-examination of Andrews. He testified that he had not been in the store while the boys were...