Knowles v. Mulder

• Decision Date: 15 February 1889
• Citation: 74 Mich. 202,41 N.W. 896
• Court: Michigan Supreme Court
• Parties: KNOWLES v. MULDER.

41 N.W. 896

74 Mich. 202

KNOWLES v. MULDER.

Supreme Court of Michigan

February 15, 1889

Error to circuit court, Muskegon county; ARNOLD, Judge.

Action by Roswell Knowles against William Mulder, to recover damages for injuries sustained through a vicious dog owned by defendant. He obtained a verdict and judgment. Defendant brings error.

CHAMPLIN J.

The parties to this suit are farmers and neighbors, living on adjoining sections of land, one in the township of Ravenna and the other in the township of Moorland, in Muskegon county. The defendant is the owner of a dog which had been in his possession upwards of two years. On the 7th day of August, 1887, the plaintiff was riding a buggy drawn by one horse, past defendant's house, in the public highway. His hired man was sitting in the seat with him, and each was leading a colt by the halter behind the buggy. A third colt was following loose behind them. The colts were two years old, had been halter-broken, and were gentle. Plaintiff claims that, as he was driving past defendant's house on a slow trot, defendant's dog came running out into the highway, and barked and attacked the colts, frightening them and causing them to jump against his buggy; one of them jumping upon him, and throwing him out of and under the buggy, and seriously injuring him. This suit is brought to recover damages for such injury. Defendant pleaded the general issue, and a trial was had, and the jury returned a verdict for the plaintiff. Objection is made to the sufficiency of the declaration. If the defendant did not deem it sufficient, he should have demurred. It discloses a cause of action, and will be considered sufficient after verdict. It is also claimed that there was no testimony showing, or tending to show, that defendant knew, or had cause to believe, that his dog was vicious, and in the habit of attacking teams or passers-by in the highway. This objection is taken for the first time in this court. It is inconsistent with defendant's third request to charge which was as follows: "If the injury of plaintiff was caused by one of defendant's dogs running into the highway, and barking at or attacking the plaintiff's colts, or either or any of them, still the plaintiff cannot recover, unless you further find that defendant knew, or should have known, that this same dog was in the habit of so running out into the highway when people were passing, and barking at or attacking them, and had not used proper diligence to restrain him," and which was substantially given by the court in the following language: "If the injury to the plaintiff was caused by one of the defendant's dogs running into the highway, and biting or attacking the plaintiff's colts, or either or any of them, still plaintiff cannot recover, unless you further find that the defendant knew, or ought to have known, that this same dog was in the habit of so running out into the highway when people were passing, and barking at or attacking them and did not use proper diligence in restraining him." We have looked into the record, and we cannot say that there was no evidence tending to prove knowledge on the part of defendant of the vicious propensity of this dog to run out into the street, and bark at and attack teams of those traveling by. Numerous instances of the kind were testified to by witnesses, and there was testimony from which the jury was warranted in drawing the inference that defendant knew of this vicious habit of the dog. The length of time the defendant had owned the dog, his habit of running into the street, giving chase to and barking at passers-by in vehicles before the occurrence complained of, the conversation as testified to by plaintiff which he had with defendant, when he told him his dog was to blame for the injury, and defendant's remark that it must have been the little dog, for the big one did not run out into the street and the further fact that it was the smaller of the two dogs owned by defendant which, as is claimed, did the mischief, were all proper to be considered and weighed by the jury, and had, if...