Nicholes v. Lorenz

• Decision Date: 01 December 1974
• Docket Number: No. 11,11
• Citation: 396 Mich. 53,237 N.W.2d 468
• Parties: Forrest H. NICHOLES, Jr., Individually and as next friend of minor, Mary Kay Nicholes, Plaintiffs-Appellants, v. Ronald LORENZ, Defendant-Appellee. ,
• Court: Michigan Supreme Court

Page 468

237 N.W.2d 468

396 Mich. 53 Forrest H. NICHOLES, Jr., Individually and as next friend of minor, Mary Kay Nicholes Plaintiffs-Appellants, v. Ronald LORENZ, Defendant-Appellee.

No. 11, Dec. Term, 1974.

396 Mich. 53, 237 N.W.2d 468

Supreme Court of Michigan.

Jan. 27, 1976.

James M. Catchick, Grand Rapids, for appellants; Robert A. Benson, Grand Rapids, of counsel.

Phelps, Linsey, Strain & Worsfold, P.C., by Dale M. Strain, Grand Rapids, for appellee.

COLEMAN, Justice.

The principal issue is whether the prior good or bad behavior of a dog is relevant under the present 'dog bite' statute which has eliminated proofs of past conduct of a dog and the owner's knowledge of such as conditions precedent to the owner's liability. We hold that the challenged testimony entered over defendant's objection was irrelevant and prejudicial. The Court of Appeals is affirmed.

1.

Plaintiff's daughter was bitten by defendant's dog who was chained and lying in the back yard. Defendant was away with his sons fishing at the time of the incident and his dog Wolf had been locked in the basement. Defendant's wife was at work. During their absence, someone had kicked in a plywood panel which had been nailed inside the basement window. The dog had departed by that route, but had been brought back by the son of the next door neighbor. The boy then chained Wolf to a stake in defendant's back yard. Defendant had no knowledge of this incident or the biting until he returned home two or three hours later.

In the meanwhile, four children had been playing nearby for about twenty minutes. Two or three had gone over to pet the dog. Plaintiff's daughter, Mary (then 7), also was close but did not wish to pet him, but Kim (then 6) pushed her forward and she stepped down on the dog's tail. The dog reacted by biting the little girl on the nose. He made no attempt to bite or lunge at the girl who came to lead Mary away.

Prior to trial defendant informed the court that plaintiff proposed 'to put on a rather large number of witnesses from in and around the neighborhood relative to the reputation or past activities of the dog.' He said 'this would be totally irrelevant to the issues in this case and should be excluded.' The court did not agree. Defendant repeated his 'objections to testimony solely for the purpose of exciting the jury and in effect asking for punitive damages.'

Subsequently, in his opening statement plaintiff said that he intended to call a series of witnesses who would 'testify to basically the general, previous acts of viciousness and actions toward persons and other dogs, by the dog in question in this case, one Wolf.' He characterized the testimony as showing that the dog 'had seriously damaged and injured other dogs as well as other children and young people.'

The witnesses who followed lived in defendant's neighborhood. One said that Wolf, while chained in defendant's backyard, had bitten his son's jacket during play with a football. He had not seen the incident nor complained to defendant. The son said it happened four and one-half to five years previously and that he had not informed defendant. Another witness said the dog had bitten her on the hand two or three years before when she tried to pet him as he was chained in his own yard. She never told defendant about the incident. The next three witnesses said Wolf had fought with their dogs. They also never complained to defendant and one witness never saw the fight. Another neighbor said she had seen Wolf running loose on three occasions within seven years. A next door neighbor said Wolf had followed her to the store and jumped on her. He then 'tagged' her home and she gave him some water. These incidents occurred up to seven years prior to the incident in this case. Fifty-five of 152 pages of transcript were dedicated to this testimony.

Plaintiff claims that defendant is 'liable under M.C.L.A. § 287.351 as the owner of a dog, which without provocation did bite' the daughter.

The jury returned a verdict in favor of plaintiff and his daughter. The Court of Appeals reversed, finding that 'Wolf's prior behavior was irrelevant.' 49 Mich.App. 86; 211 N.W.2d 550 (1973).

2.

Plaintiff's cause of action was based solely on M.C.L.A. § 287.351; M.S.A. § 12.544, which reads in part:

'The owner of any dogs which shall without provocation bite any person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of such dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness.'

This was enacted by 1939 P.A. 73.

Dog bite statutes date almost from statehood. 1850 P.A. 161 established in part that if any dog

'Shall assault of bite, or otherwise injure any person while traveling the highway, or out of the enclosure of the owner or keeper of such dog, such owner or keeper shall be liable to the . . . person injured in double the amount of damages sustained, . . . and it shall not be necessary in order to sustain an action, to prove that the owner or keeper knew that such dog was accustomed to do such damage or mischief.'

This statute was repealed by 1929 P.A. 309. Following repeal, actions for damages were governed by 'the common law liability of the owner of a dog for damages committed by it.' See 1929 C.L. 5273 which is now found at M.C.L.A. § 287.288; M.S.A. § 12.539.

Although the dog bite statute ¹ and the common law can be employed in alternative counts, ² such is not the case before us. ³ There is only the one count.

3.

By this opinion we establish the law for subsequent cases tried under the statute. This is our first occasion to interpret 1939 P.A. 73 and so it is important that legislative concepts be objectively explored.

To provide redress for dog bite victims, the legislature by statute retained the common law remedy but in addition enacted the statute under which this action is brought. It creates an almost absolute liability. However, the legislature excepted the consequences which might reasonably result from provoking an animal.

In the present statute, the only facts necessary to sustain plaintiff's case are (1) that the dog bit the girl (agreed) and (2) the biting was 'without provocation'.

It is also agreed that the girl stepped on the dog's tail.

Defendant claims that the statute renders the neighbors' testimony irrelevant and inadmissible. Plaintiff argues that the challenged testimony discredits any contention that stepping on the dog's tail provoked him to snap.

All agree that the threshold question for the jury was whether stepping on the dog under the circumstances described by witnesses to the biting constituted provocation. Nothing else had to be proved and nothing else was relevant--not his prior gentleness or roughness nor the sensitivities of his breed.

If the testimony in question had been designed to submerge the requisite issue, it could not have been more successful. Its sole value was to inflame the emotions of the jury. The Court is constantly on guard against any process which would lead to a verdict by emotional reaction to nonprobative evidence. No matter how commendable their emotions, the jury's central duty is to find the facts necessary to the statute.

The Supreme Court of Arizona has had occasion to consider a statute similar to ours. ⁴ In Litzkuhn v. Clark, 85 Ariz. 355, 339 P.2d 389 (1959), that court held:

'Furthermore, under the statute the gentleness or viciousness of 'Choly' was not an issue and evidence bearing upon this matter should have been excluded.'

Similarly in the Michigan statute nothing in the dog's or the owner's history has any bearing upon the facts of the present injury. ⁵

The testimony of the neighbors contains no nexus to the fact to be established. The statute specifically excludes the need for such testimony. In other words, the testimony was irrelevant to a finding of liability.

4.

Plaintiff argues that testimony regarding a dog's prior behavior is admissible to determine damages. He cites as authority Swift v. Applebone, 23 Mich. 252 (1871). That case was brought for double damages under 1850 P.A. 161, Supra, after a dog had bitten a person on a highway. Justice Cooley said that testimony of the owner's knowledge of a dog's prior viciousness was relevant when such damages were being considered by the jury. He said in this regard:

'The jury should judge of such a case in view of all the circumstances; and as the sense of injury suffered will depend very largely upon the disposition shown by the owner of the dog to repsect or disregard othe rights of others, it is proper that the jury know what that disposition has been.'

The facts of that case are not in point here.

It is noted, also, that Justice Cooley later clarified the Swift holding.

In Elliott v. Herz, 29 Mich. 202 (1874), plaintiff sought to recover under the statute when some of his sheep were killed by defendant's dog which had become rabid. Writing for the Court, Justice Cooley said: 'The statute which makes the owner of a dog liable in double damages for the killing, wounding or worrying by him of domestic animals, is penal in its consequences, and cannot be supposed to have been designed for cases in which the owner was in no manner in fault. Damages in excess of the real injury are awarded in some cases because the conduct of the party has been peculiarly malicious, vindictive or reckless, but never where the injury has proceeded from his misfortune rather than from any blamable misfeasance or nonfeasance.'

If the legislature had desired to give such a remedy, 'especially if it was to be punitory in its nature', Justice Cooley concluded, it 'would have been given in more distinct terms.' ⁶

Unlike the 1850 statute, the present 'dog bite' statute does not provide for punitive damages. ⁷ The owner here is liable only 'for such damages as may be...