Legault v. Malacker
| Decision Date | 17 March 1914 |
| Parties | LEGAULT v. MALACKER. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Marinette County; William B. Quinlan, Judge.
Action by George Legault against John Malacker. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed and remanded, with directions to overrule the demurrer.
The action is brought by a father to recover damages resulting to him by reason of the illness and death of his minor son. The complaint alleges, in substance, that the defendant owned a certain dog, and that on a certain day, while the plaintiff's son, in the exercise of due care, was lawfully in and upon the highway, said dog attacked and bit him, so wounding him that he subsequently died as a result of his said injuries. Resulting damages are also fully alleged. A general demurrer to the complaint was sustained, and the plaintiff appeals.Gilbertson, Lehr, Reitman & Kiefer, of Milwaukee (J. Elmer Lehr and Lehr, Kiefer & Reitman, all of Milwaukee, of counsel), for appellant.
Eastman, Goldman & Fairchild, of Marinette, for respondent.
The respondent claims that the complaint should allege (1) that the dog was vicious or mischievous; and (2) that the defendant had knowledge of that fact. Upon these contentions the court holds:
[1] 1. Section 1620, Stats. 1911, makes allegation and proof of scienter unnecessary as well in case of injuries to persons as in case of injuries to cattle by dogs. The doubts expressed in Kertschacke v. Ludwig, 28 Wis. 430, and Slinger v. Henneman, 38 Wis. 504, are not considered well founded.
[2] 2. Where a complaint alleges that a dog attacked and wounded a person, who at the time was where he might lawfully be and in the exercise of ordinary care, it is unnecessary to go further, and allege that the dog was vicious or mischievous. Such a dog is necessarily vicious, and a separate allegation to that effect is unnecessary. The law no longer “allows a dog his first bite,” as was said to be the case before the passage of the law abolishing proof of scienter.
Order reversed, and action remanded, with directions to overrule the demurrer to the complaint.
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...Am. St. Rep. 459;Elliott v. Herz, 29 Mich. 202;Clinkenbeard v. Reinert, 284 Mo. 569, 225 S. W. 667, 13 A. L. R. 485;Legault v. Malacker, 156 Wis. 507, 145 N. W. 1081. See, also, Hawks v. Locke, 139 Mass. 205, 208, 1 N. E. 543,52 Am. Rep. 702. The statutes imposing liability on an owner or k......
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