McCarrick v. Kealy

• Decision Date: 24 June 1898
• Citation: 70 Conn. 642,40 A. 603
• Court: Connecticut Supreme Court
• Parties: McCARRICK v. KEALY.

40 A. 603

70 Conn. 642

McCARRICK

v. KEALY.

Supreme Court of Errors of Connecticut.

June 24, 1898.

Appeal from court of common pleas, Pairfield county; Nichols C. Downs, Judge.

Action by Rose McCarrick, by her natural guardian and next friend, Michael McCarrick, against Patrick J. Kealy, to recover damages for personal injuries claimed to have been caused by the defendant's dog, brought before a justice of the peace, and thence by the defendant's appeal to the court of common pleas, and tried to the court. Facts found and judgment rendered for the plaintiff, and appeal by the defendant for alleged errors in the rulings of the court. Error, and new trial granted.

The plaintiff was described as a minor, who sued by Michael McCarrick, her natural guardian and next friend. The trial court found the following facts: (1) On the 23d day of March, 1895, the defendant resided in the town of Fairfield, and was the owner and keeper of a large Newfoundland dog. (2) On said day the plaintiff, then of the age of 16 years, in response to a message from the defendant's daughter, conveyed to her by the defendant's son, John Kealy, then of the age of 7 years, started from her parents' house to go across the fields to the defendant's house, accompanied by said John Kealy. (3) While passing through an open field, the defendant's said dog attacked the plaintiff, and bit her on the leg, just above the ankle. (4) The plaintiff immediately turned, and went back to her parents' house, accompanied by the said John Kealy. (5) The time occupied by the plaintiff in going from the point where she was bitten to her parents' house was less than five minutes. (6) Upon cross-examination she testified that upon reaching her parents' house, and as she was entering the door thereof, she said to her mother, in the presence and hearing of said John Kealy and a boy named Charles Stillson, "Kealy's dog bit me," and immediately proceeded to show her mother the wound. (7) The defendant claimed, and by cross-examination of the plaintiff, and subsequently by direct evidence, endeavored to show that said dog did not bite the plaintiff, but that she had injured her leg by falling while said dog was running towards her in said field. (8) Said Charles Stillson was subsequently called as one of the plaintiff's witnesses, and testified that he saw the plaintiff coming out of the field opposite her parents' house crying, and accompanied by said John Kealy; that he (the witness) met her at the door, and followed her into the house. (9) The witness was then asked what, if anything, he heard her say at the time she entered the house, in reference to her leg, and answered, "Nothing, only that the dog bit her." To the admission of this evidence the defendant objected. The plaintiff claimed said evidence as a part of the res gestae. The court admitted said evidence, and the defendant duly excepted. (10) Said John Kealy, having been called as a witness for the defendant, contradicted the plaintiff as to his having been with her when she was going through said field towards the defendant's house. (11) Upon cross-examination, without objection from the defendant, he corroborated said Charles Stillson as to the plaintiff having told her mother that said dog had bitten her. (12) There was no eyewitness to the encounter between the plaintiff and said dog, except said John Kealy. (13) The plaintiff testified that she had no knowledge that her father, Michael McCarrick, intended to institute a suit for the recovery of damages for her personal injuries, and that said action had been instituted without her knowledge. (14) No other evidence was offered upon this subject, and the court finds that said suit was instituted in plaintiff's name by her father without her knowledge or request. The errors assigned in the appeal are the rulings of the court in admitting the evidence of the declarations of the plaintiff, Rose McCarrick, and in deciding that plaintiff was entitled to a judgment although the action was instituted without the knowledge or consent of the minor.

Stiles Judson, Jr., for appellant.

Elmore S. Banks, for appellee.

HALL, J. (after stating the facts). The decision of this case in the trial court depended upon the question of fact whether the plaintiff was bitten by the defendant's dog, or was injured, as the defendant claimed, by a fall while she was running in the field. The plaintiff was the only witness who testified that she was bitten by the dog. What evidence was introduced by the...