Reid v. Nelson

• Decision Date: 10 April 1946
• Docket Number: No. 11448.,11448.
• Citation: 154 F.2d 724
• Parties: REID et al. v. NELSON et al.
• Court: U.S. Court of Appeals — Fifth Circuit

154 F.2d 724 (1946)

REID et al. v. NELSON et al.

No. 11448.

Circuit Court of Appeals, Fifth Circuit.

April 10, 1946.

James A. Dixon and H. Reid DeJarnette, both of Miami, Fla., for appellants.

Harold B. Wahl, of Jacksonville, Fla., for appellees.

Before SIBLEY, WALLER, and LEE, Circuit Judges.

WALLER, Circuit Judge.

Plaintiff, Edna Nelson, in her own right as mother, and as next friend of Sandy Lynn Nelson, a 3½ year old minor, sued the defendants, William H. Reid and Jessie Reid, for damages to the child and for loss by the mother of earnings of the minor alleged to have been caused by the attack on Sandy by a Dalmatian dog alleged to belong to defendants. A verdict for the minor in the sum of $2,200 and for the mother in the sum of $8,550 was returned by the jury, on which judgments were entered by the lower Court and allowed to stand.

Section 767.01 of Florida Statutes 1941, F.S.A., makes the owner of a dog liable for any damage which his dog does to sheep, domestic animals, livestock, or persons.¹

Only two specifications of error are urged on appeal: (1) that there was no evidence upon which a jury could predicate a verdict so excessive; and (2) that the evidence affirmatively shows that Jessie Reid was not the owner of the dog.

We will dispose of the second and easier of the two questions first.

The evidence affirmatively shows that the dog was owned by the husband, William H. Reid. There is no direct evidence to the contrary. It is in evidence that Mrs. Reid referred to the dog as "our dog", but, in the face of the positive testimony that the dog belonged to Mr. Reid and not to his wife, and in the absence of any proof other than the reference by Mrs. Reid to this household pet as "our dog", we hold that the evidence wholly fails to show that Mrs. Reid had any ownership in the dog. The reference of members of a household to a canine member of such household as "our dog" is not sufficient to prove the ownership that the statute fixes as the basis of liability. Such statements by Mrs. Reid, in the absence of direct and undisputed evidence that the dog was the sole property of Mr. Reid, might support a prima facie inference of ownership by the person making such statements, but this would have to give way in the face of positive, undisputed, and unimpeached testimony to the contrary. The test of liability is ownership — not possession or custody.

The question of negligence in the handling of the dog and allowing it to run loose is not involved in this case since it was predicated upon the statute which makes the liability of the owner of a dog absolute for any damages done by it to persons or domestic animals.

Appellants insist that the verdict in favor of the mother for loss of the earnings which she expected the child to receive as a child model during its minority was grossly excessive and wholly lacking in evidence to...