Koetting v. Conroy

• Decision Date: 08 December 1936
• Parties: KOETTING v. CONROY et al.
• Court: Wisconsin Supreme Court

223 Wis. 550

270 N.W. 625

KOETTING

v.CONROY et al.^*

Supreme Court of Wisconsin.

Dec. 8, 1936.

Appeal from a judgment of the Circuit Court for Milwaukee County; Otto H. Breidenbach, Judge.

Affirmed.

Action by Adeline Koetting against A J. Conroy and another commenced November 28, 1933. From a judgment of nonsuit as to the defendant named, entered May 23, 1936, the plaintiff appeals. The facts are stated in the opinion.

Gold & McCann, of Milwaukee, for appellant.

Olwell & Brady, W. F. Radke, and A. McG. Schlesinger, all of Milwaukee, for respondents.

FOWLER, Justice.

The plaintiff was injured by a dog owned and at the immediate time under the control of the adult daughter of the defendant A. J. Conroy. The dog ran into the plaintiff from behind and caused her to fall, and in the fall she sustained serious and permanent injury to her hips. The dog had been unleashed by its owner and was running in a public park. On trial of the case judgment went against the owner of the dog, who is not appealing, but a verdict was directed in favor of the respondent who admittedly was not the owner of the dog or present at the time of the injury, except as the provision of section 174.05 (1), Stats., providing that one who “harbors” a dog makes him the owner. The claim against the respondent is based upon section 174.02, Stats., which reads as follows:

“ Owner's Liability. The owner or keeper of any dog which shall have injured or caused the injury of 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.”

The plaintiff, in order to make a case against the respondent, had to show facts (1) which made him the keeper of the dog and (2) which brought the circumstances of the injury within the statute.

(1) The evidence showed that the adult daughter of the respondent, who owned the dog, lived in his home as a member of his family and received her board and lodging and entire support from him. The dog was kept in the dwelling house of respondent, with his knowledge and permission, and fed from the remnants of his table. The respondent at times played with the dog, and had permitted his daughter to take him into the automobile when she accompanied the respondent on a trip. There was no evidence that the respondent ever took the dog with him when he was alone either in the automobile or when out walking, or that he took the dog out for exercise. The respondent had no knowledge that the daughter had the dog out at the immediate time, but did know that she was in the habit of taking her out as she did in the instant case.

It must be held that the respondent was the keeper of the dog if we adhere to what was said in Hagenau v. Millard, 182 Wis. 544, 547, 195 N.W. 718, 719:

“Where a child is the owner of a dog kept on the premises of the father, who supplies it with food and furnishes it with shelter upon his premises, the father is deemed to be a keeper of the dog.”

The following cases support this statement and hold as below stated:

Holmes v. Murray, 207 Mo. 413, 105 S. W. 1085, 17 L.R.A.(N.S.) 431, 123 Am.St. Rep. 386, 13 Ann.Cas. 845. A person is liable for sheep killed by a dog belonging to his daughter, where she lived with him and kept house for him, and dogs were kept by her with his consent. The statute involved provided that the owner of sheep killed by a dog might recover of the “owner or keeper” of the dog.

Davidson v. Manning, 168 Ky. 288, 181 S.W. 1111. A dog was owned by a minor son and kept on his mother's premises with her knowledge and consent. Under a statute (Ky.St.1915, § 68a, subd. 5) providing that every person “owning or harboring a dog shall be liable *** for all damages done by such dog” both the son and the mother were held liable as joint harborers to a person bitten by the dog.

Adams v. Brown, 140 Mo.App. 434, 124 S.W. 1065. Under a statute making the owner or keeper of dog liable for damages for injury to domestic animals, a person was held liable where a dog that committed injury was kept at his home by his son living with him when kept with his knowledge and consent.

Slater v. Sorge, 166 Mich. 173, 131 N.W. 565. The defendant was the husband and head of the family. His wife owned a dog which was kept on his premises. The husband was home week ends only. He was held to be the keeper of the dog and liable for the injury done by its biting.

Jenkinson v. Coggins, 123 Mich. 7, 81 N.W. 974. The defendant owned a farm which was operated on shares by her son, 28 years old. The son lived with the defendant on her farm. The son owned a dog. The mother was held liable under statute making liable the “owner or keeper” of a dog injuring the plaintiff's horse when the plaintiff was traveling on the highway and caused it to injure him.

Plummer v. Ricker, 71 Vt. 114, 41 A. 1045, 76 Am.St.Rep. 757. A father was held to be the keeper of a dog owned by his minor son and liable for injury done by it where he permitted the dog to be housed and fed on the premises and to run at large.

Snyder v. Patterson, 161 Pa. 98, 28 A. 1006. One who permitted a minor nephew living with him as a member of his family to keep a dog was held liable as the keeper of the dog for injuries done by it.

[1][2] Under these cases and our statute we are of opinion that the respondent was the keeper of the dog. Some Massachusetts cases seem to impose other conditions as necessary to make one who permits a dog to be kept on his premises his keeper, but what the conditions are is not clear. Whittmore v. Thomas, 153 Mass. 347, 26 N.E. 875;Boyland v. Everett, 172 Mass. 453, 457, 52 N.E. 541. Respondent cites Mitchell v. Chase, 87 Me. 172, 32 A. 867, 868, as holding as necessary to constitute a person the keeper of a dog that he must be one who has “the care of the dog; who has the custody of the dog; who has its control.” While one would be the dog's keeper who fulfilled these conditions, the statement does not negative one's being a keeper who does not fulfill them. The word “control” is subject to different limitations. The defendant in the instant case doubtless exercised no control over the dog except that he controlled whether the dog should be kept in his home or not and whether it should be fed from the family larder or not, but that sort of control is the thing, that, in view of the statute and the cases above cited, makes him the dog's keeper.

[3][4] It is argued by respondent that a person is not the keeper of a dog unless it is under his custody and control. Cases are cited that on the face of the statements in the opinions give color to the contention. Burnham v. Strother, 66 Mich. 519, 33 N.W. 410; Mitchell v. Chase, supra; McLaughlin v. Kemp, 152 Mass. 7, 25 N.E. 18. We consider this view too narrow. If a father permitted his child to keep a dog on his premises and the dog killed a neighbor's sheep, we are of opinion that under our statute the father would be held liable. One purpose of the statute is to protect domestic animals from injury by dogs by whomsoever the dogs are kept or harbored and to make a person who keeps or harbors a dog responsible for all injuries inflicted by it upon animals. The same is true respecting injury done to persons, providing that the injuries are inflicted under circumstances such as the statute contemplates, which we consider under (2).

[5] It is also contended that the keeper is not liable for injuries done by a dog if the dog is under the control of another at the immediate time. The cases of Janssen v. Voss, 189 Wis. 222, 207 N.W. 279, and Hagenau v. Millard, supra, are claimed to sustain this view. Here also we consider that the statute does not permit of such a limitation. It is inconsistent with the purpose of the statute. If one is the keeper of a dog, he is made responsible by the statute for injuries inflicted by it. In the Hagenau Case, the mother of the boy who owned the dog particularly exempted herself from being its keeper by causing the dog to be kept for the period of her absence in a dog hospital. To be within the rule of the Hagenau Case, the defendant should have refused to permit the dog to be kept on his premises, should have compelled the daughter to keep it or have it kept elsewhere. In the Voss Case, the defendant was held not to be the keeper of the dog because the dog was kept by its owner with the defendant's permission in an apartment rented by the owner from the defendant. The dog at times entered the defendant's restaurant where its owner worked without being removed and was in the restaurant at the time of the injury. The case holds, in effect, that the statute does not contemplate that the owner of an apartment building, one of whose tenants owns a dog and keeps it in the...