Legault v. Malacker
| Decision Date | 20 June 1917 |
| Citation | 163 N.W. 476,166 Wis. 58 |
| Parties | LEGAULT v. MALACKER. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Marinette County; W. B. Quinlan, Judge.
Action by George Legault against John Malacker. From a judgment sustaining a motion for nonsuit, plaintiff appeals. Reversed and remanded for a new trial.
A general demurrer to the complaint was overruled by this court upon a former appeal in the present action. 156 Wis. 507, 145 N. W. 1081. After the return of the case to the circuit court it was brought to trial before a jury. The plaintiff's proof tended to show that he was the father of Gregory Legault, a boy nine years of age, who was bitten by a dog kept by the defendant, and thereafter died. Proof was also made of medical and funeral charges. A motion for nonsuit was made on two grounds: (1) That the action being for damages resulting from death it must be brought by an administrator under section 4256, Stats. Wis.; and (2) that no negligence was shown on the part of the defendant. The motion was sustained on the first ground, and the plaintiff appeals.
Eastman & Goldman, of Marinette (H. R. Goldman, of Marinette, of counsel), for respondent.
The complaint in the action is the same as it was when the case was before us upon a general demurrer. The damages which it seeks to recover are the expensesof the medical treatment and the value of the boy's services during minority and which have been lost by reason of his death. No claim is made for the value of his services during his illness. The burden of the complaint is the recovery of death damages pure and simple under what is familiarly known as Lord Campbell's Act. Sections 4255 and 4256, Stats. Wis.
[1] This complaint was sustained by this court against general demurrer upon the former appeal. This means of course that it was deliberately held that the complaint stated a good cause of action in favor of the plaintiff. It meant also that this question is settled for this case whether we now deem the decision right or wrong. It has become the law of the case and is not to be departed from. Ellis v. N. P. R. R. Co., 80 Wis. 459, 50 N. W. 397, 27 Am. St. Rep. 44;Schoenleber v. Burkhardt, 94 Wis. 575, 69 N. W. 343.
[2] It is true that the only question debated upon the former appeal was whether it was necessary to allege scienter, but the question whether the plaintiff shows himself to have any right to recover damages is directly and necessarily involved in every case of general demurrer to a complaint for damages, and the decision upon such demurrer sustaining the complaint necessarily decides the question of the plaintiff's right to recover damages in case he proves the facts therein stated.
[3] Were this prior decision not in the case it seems that, under the provisions of section 4256, supra, an action to recover death damages in such a case as this could only be brought by the administrator of the boy's estate. That section provides that such an action should be brought by the personal representative of the deceased, except that in case there be no cause of action in favor of the estate of the deceased, and the surviving persons entitled to the recovery be the husband, widow, or parents, suit may be brought directly in his, her, or their name or names. The present case does not come within the proviso because it appears that the deceased was ill for several weeks and hence there would be an action in favor of his estate to recover for his pain and suffering. The former decision settles the law for this case, but is not to be understood as settling the law for other cases upon this question.
The defendant argues, however, that even if this proposition be conceded, still the judgment should be sustained because the evidence shows that the dog had hydrophobia, and that there can be no recovery in such case, unless it also appears that the defendant knew that the dog was rabid and was negligent in not keeping him confined.
[4] Upon the former appeal we held that it was unnecessary to allege scienter, and that an allegation that a dog attacked a person who was where he might lawfully be and in the exercise of care was a sufficient allegation that the dog was vicious. This is of course the law of the case on this point, and we have no doubt of its being correct as a legal proposition.
[5] In the subsequent case of Harris v. Hoyt, 161 Wis. 498, 154 N. W. 842, L. R. A. 1916C, 344, we held that while the statute abolishes the necessity of alleging and proving scienter, it does not impose an absolute liability. This also seems to us to be good law. The logical result of these holdings is that on proof of the fact that a person has been bitten by a dog a prima facie case of liability is made against the owner or keeper; this prima facie case may be defeated if it appear either by the plaintiff's evidence or by evidence introduced by the defendant that the plaintiff brought or helped to bring the dog's attack upon himself by provoking the dog, by lack of ordinary care, or by trespass of such a nature as is calculated to induce an attack.
[6] This we think to be correct as a general rule, but the question now presented and argued is whether it applies to the case of a dog suffering from rabies, as the evidence shows was the case here. This question was met and decided by the Supreme Court of Michigan in the early case of Elliott v. Herz, 29 Mich. 202, where a statute in similar terms was held not to apply to the case of a rabid dog. Chief Justice Cooley said in that case that:
The statute ...
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