Robinson v. Marino

• Decision Date: 11 January 1892
• Citation: 28 P. 752,3 Wash. 434
• Parties: ROBINSON ET UX. v. MARINO.
• Court: Washington Supreme Court

28 P. 752

3 Wash. 434

ROBINSON ET UX. v. MARINO.

Supreme Court of Washington

January 11, 1892

Appeal from superior court, King county; T. J. HUMES, Judge.

Action by E. O. Robinson and Carrie Robinson, his wife, against S Marino. There was judgment for plaintiffs, and defendant appeals. Affirmed.

HOYT J., dissenting.

White & Munday, for appellant.

T H. Cann and Battle & Shipley, for respondents.

ANDERS C.J.

This was an action brought by respondents, as husband and wife, to recover damages for injuries inflicted upon the plaintiff Carrie Robinson by a dog owned and kept by appellant. On the trial one Dr. Hilton, a witness for plaintiff, having testified that he treated two wounds on plaintiff, which he described, was asked this question: "From your knowledge as a surgeon and general practitioner, can you tell what the probable cause of those wounds was?" The question was objected to by defendant on the ground that the same was incompetent, and was not in the nature of expert testimony. The court overruled the objection, and exception was duly taken and allowed, and this ruling of the court is assigned as error. Appellant also insists that the witness was not shown to be competent to testify as an expert, but it is a sufficient answer to this objection to state that the point was not raised in the court below, and cannot be urged for the first time here. We must therefore assume that the witness was competent. Indeed, the competency of the witness as an expert is sufficiently disclosed by the record, for it is there shown that he had been a practicing physician and surgeon for 20 years, and was still practicing as such at the time of the trial. Physicians and surgeons of experience are presumed to be acquainted with all matters pertaining to their profession, and to be competent to testify concerning the same. Rog. Exp. Test. (2d Ed.) 43, 99. And that a medical expert may give an opinion as to the means by which a particular wound was inflicted is the prevailing doctrine of the courts. Id. 127, 128, and cases cited. But the question here objected to called for no opinion whatever except as to whether the witness had sufficient knowledge to tell what probably caused the wounds described. He was not asked to state what caused them, or even what probably caused them. The question was preliminary in its nature, and the objection was properly overruled. But, even if it was error to permit the question to be propounded to the witness, we think the judgment should not be reversed, as the defendant could not have been prejudiced thereby. It was clearly shown by other competent testimony in the case that the plaintiff Mrs. Robinson was bitten by defendant's dog, and that whatever injuries she suffered resulted therefrom. The admission of incompetent testimony under such circumstances would not justify us in reversing the judgment of the trial court. Brown v. Forest, 1 Wash. T. 201.

Appellant also insists that it was error to permit the witness Addie Simons to testify to particular instances of the action of the dog in question, for the reason that no testimony had been offered to show that defendant had any knowledge of the same, and that it was not competent to prove the disposition of the dog by such testimony. We think the objection cannot be sustained. It was alleged in the complaint that the dog was of a ferocious and mischievous disposition, and accustomed to attack and bite mankind; and it is quite evident that that fact could not be more readily made manifest than by testimony descriptive of his actions. Whether or not the dog was vicious was one of the principal issues to be determined by the jury, and it was certainly competent to show that previously to the occasion on which he attacked Mrs. Robinson he had bitten or attempted to bite another person.

It is alleged in the brief of appellant that the evidence on behalf of the plaintiffs failed to show that the dog was of a ferocious disposition, and failed to show that defendant had notice or knowledge of such disposition, and failed to show any negligence on the part of the defendant in suffering the dog to be at large; and it is therefore contended that defendant's motion for a nonsuit should have been granted. But we are of the opinion that there was sufficient testimony to go to the jury upon each of the points made by counsel. Several witnesses for the plaintiffs had testified that the dog had always been kept chained, which was strong evidence that he was ill-disposed; and that he would bark and jump at persons going near him while tied, and endeavor to get loose. The plaintiff Mrs. Robinson testified that she had lived on the opposite side of the street from the residence of the defendant for about three years, and that she had known the defendant's dog during that time, and that on the morning of November 2, 1890, she went to the house of defendant to get vegetables, as she had been accustomed to do; that when she got to the corner of the house the dog was lying with his nose on the door-step, which she thought was something unusual, and sprang upon her and bit and bruised her badly, and bit her arm to the bone; and Mrs. Simons had testified that on one occasion, and the only time she ever saw the dog at large, she saw him run after and seize hold of a woman's dress as she ran out through the gate; and Mr. Peterson had testified that the defendant stated to him the summer before that he was afraid that his dog would get loose and bite his (Peterson's) child, because she was in the defendant's garden so much. With such testimony before it, the court would not have been justified in granting defendant's motion. The owner of a domestic animal is not liable, in the absence of statutory provision, for any injury it may inflict upon others, unless he has notice of its inclination to commit such an injury. But, according to the more modern and more reasonable doctrine, it is not necessary that he should have had actual positive notice. If he has notice that the disposition of the animal is such that it would be likely to commit an injury similar to the one complained of, it is sufficient. It is not necessary that the notice be of injury actually committed. Thus, in case of a dog known to be vicious and ferocious by its keeper, it is unnecessary to show that he had previously bitten any person. The keeper of such a dog must see to it that he is kept securely, or be responsible for all injury done by him. Cooley, Torts, (2d Ed.) 404, 405; 2 Shear. & R. Neg. (4th Ed.) § 630; Flansburg v. Basin, 3 Ill.App. 531; Godeau v. Blood, 52 Vt. 251. In the case last cited, REDFIELD, J., said: "The duty which the law casts upon the keeper of a dangerous and malicious domestic animal is but the enforcement of a common moral duty, binding upon all men, that a man should so keep and use his own property as not to wrong and injure others. The formula used in text-books and...