Powell v. Gallivan

• Citation: 118 A. 769
• Decision Date: 01 December 1922
• Docket Number: No. 5454.,5454.
• Parties: POWELL v. GALLIVAN et ux.
• Court: Rhode Island Supreme Court

118 A. 769

POWELL

v. GALLIVAN et ux.

No. 5454.

Supreme Court of Rhode Island.

Dec. 1, 1922.

Exceptions from Superior Court, Providence and Bristol Counties; J. Jerome Hahn, Judge.

Action by Edith G. Powell, by her next friend, against Jeremiah F. Gallivan and wife. Judgment for plaintiff, and new trial denied. Case transferred on defendants' exceptions. Exceptions overruled.

See, also, 114 Atl. 143.

John L. Curran, of Providence, for plaintiff.

William S. Flynn and Edmund W. Flynn, both of Providence, for defendants.

SWEENEY, J. This action of trespass on the case is brought to recover damages for injuries sustained by the plaintiff on account of being bitten by a dog. The defendants are husband and wife, and at the close of the testimony a verdict was directed for the wife. The question of the liability of the husband was submitted to the jury, and a verdict was returned against him. A motion for a new trial was then made, and after the motion was denied he brought the case to this court upon his bill of exceptions.

The testimony shows that August 15, 1919, the defendant and his wife owned a two-family house in the city of Providence, and occupied the lower tenement thereof, and that the plaintiff, then about 2 1/2 years old, was living with her parents in the upper tenement of said house.

It appeared in evidence that the defendant owned a dog called "Joe," and that the plaintiff could talk, and the defendant's daughter testified that she had seen the plaintiff play with the dog, and had heard her call it "Joe."

The plaintiff's mother testified that late in the afternoon of August 15, 1919, she put the plaintiff in the yard to play, that the gate opening into the street was hooked, and that she did not then see the defendant's dog. She then returned upstairs, and during the next half hour frequently looked through an open window to see her child, and saw her digging with a spoon under a grapevine. She also testified that the last time she looked through the window she saw the defendant's dog in the yard, near the door, and about five or six steps from the grapevine. About five minutes thereafter she heard the dog growl and the child scream, and she ran down the stairs and found the child on the walk, almost in front of the steps, with blood on her face and screaming, She immediately picked up the child and brought her upstairs and treated her. She further testified that as she reached the place where the child was she saw the defendant's dog about two steps from the child, and it ran around the corner towards the backyard. She also testified that when she picked up the child it immediately said to her, "Naughty—mamma—Joe; he knocked me down; he bit me here, and here, and here."

The defendant objected to the admission of the statement of the child in evidence, and now claims that it was error to permit the witness to testify to the statement, upon the ground that it was not a part of the res gest?

The statement of the child was made so quickly after the attack upon her that it is in the limit of time within which statements must be made to be admissible as part of the res gest? The statement related to the cause of the injuries from which she was suffering; it appears to be spontaneous and not premeditated; and it was made so promptly and naturally after the attack upon her that it belonged to and was a part of the transaction, and was therefore admissible as a part of the transaction. State v. Murphy, 16 R. I. 528, 17 Atl. 998.

The defendant also claims that, inasmuch as the child was not of sufficient age to be sworn as a witness, her statement was not admissible in evidence as a part of the res gestae. This claim cannot be allowed, for the law is well settled that, when statement? made by a child form part of the res gests, their admissibility is allowed on the ground that they derive their force from the circumstances under which they were uttered, and do not rest upon the credit of the maker, and that res gestæ evidence is not the witness speaking, but the transaction voicing itself. Kenney v. State (Tex. Cr. App.) 79 S. W. 817, 65 L. R. A. 316, and note, page 318.

It has been held that the fact that a child is too young to be a competent witness because of inability to comprehend the obligation of an oath does not preclude the admission in evidence of its declarations as part of the res gest? State v. Lasecki, 90 Ohio St. 10, 106 N. E. 660, Ann. Cas. 1916C, 1182, and note, L. R. A. 1915E, 202.

The defendant claims an exception to the admission of testimony showing that he muzzled the dog after its attack upon the plaintiff. The plaintiff's father had testified that a sign, "Beware of the dog!" was put on the fence or in the yard three days before his child was bitten. He was then asked, in direct examination:

"Q. And do you know whether or not the dog was muzzled some time—about the same time the sign was put up there? A. He was.

"The Court: We are in the same position as to time, exactly—if it is not connected up. Defendant's exception noted."

This exception cannot be sustained. No objection was made to the question, and no motion was made to strike out the answer. It does not appear from the record whether the exception is to the question or to the answer. The inference from the testimony is that the muzzle was placed upon the dog before the child was bitten, and, this being so, the answer should stand. But, as the witness testified in cross-examination that the muzzle was placed on the dog the day after...