Koestel v. Cunningham

• Decision Date: 09 May 1895
• Citation: 97 Ky. 421,30 S.W. 970
• Parties: KOESTEL v. CUNNINGHAM.
• Court: Kentucky Court of Appeals

30 S.W. 970

97 Ky. 421

KOESTEL v. CUNNINGHAM.

Court of Appeals of Kentucky.

May 9, 1895

Appeal from court of common pleas, Jefferson county.

"To be officially reported."

Action by Patrick Cunningham against Louis Koestel for damages. From a judgment for plaintiff, defendant appeals. Affirmed.

Kohn Baird & Spindle, for appellant.

Wilson & Thum and August E. Willson, for appellee.

HAZELRIGG J.

Cunningham recovered of Koestel a judgment for $500 in damages by reason of injuries inflicted on him by the bite of the latter's dog. For the appellant it is insisted that the instructions given on the trial are erroneous, chiefly because they submitted the question of punitive damages to the jury. The verdict does not appear to exceed the actual damages of the plaintiff under the proof, but, if it did, we should regard it as invalid. The general rule in tort actions is that if the defendant act maliciously, willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others, the jury are not confined to an assessment of compensatory damages. The first sections of the chief instruction permit damages, provided the jury believe from the evidence that the plaintiff was bitten by the defendant's dog, for loss of time, doctor's bills etc., and the last sections allow punitive damages if the jury should believe from the evidence "that the defendant's dog at the time he bit the plaintiff, if he did bite him, was of a fierce or dangerous disposition towards persons, and was liable to attack and injure a person, and the defendant theretofore-that is, before the 1st day of August, 1892-had knowledge of that fact." We think the instruction was proper. At the common law the dog was regarded as a tame, harmless, and docile animal, and its owner not responsible for any vicious or mischievous act it might do, unless he had a previous knowledge of the mischievous or vicious propensities. As an English judge put it, "the dog was entitled to his first bite." The statute, however, enlarges this responsibility, and "every person owning, having, or keeping any dog shall be liable to the party injured for all damages done by such dog." St. Ky. § 68. The proof establishes overwhelmingly that the defendant's dog bit the plaintiff, while he was in no way provoking him, and when the plaintiff was casually passing along the public street unaware of the impending attack. It also conduced to show...