Steichman v. Hurst

Citation275 N.E.2d 679,2 Ill.App.3d 415
Decision Date17 November 1971
Docket NumberGen. No. 70--258
PartiesDoris A. STEICHMAN, Plaintiff-Appellee, v. Roy HURST et al., Defendants-Appellants.
CourtUnited States Appellate Court of Illinois

Gates W. Clancy, Geneva, for defendants-appellants.

Rathje, Woodward, Dyer & Burt, Wheaton, for plaintiff-appellee.

GUILD, Justice.

This appeal arises from a suit for personal injuries in which a jury verdict was returned for the plaintiff mail carrier and against defendant dog owners, assessing damages at $15,000.

Plaintiff's complaint consisted of two counts. The first alleged ownership of the dog by defendants, that it was running freely about the area when plaintiff peacefully approached the front door of defendant's home to deliver their mail, and that without provocation the dog attacked plaintiff causing her to fall and sustain injuries to her wrist and left knee at a time the following statute was in force:

'If a dog, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. * * *' Ill.Rev.Stat. ch. 8, par. 12d (1967).

The second was a common law count alleging the defendant owners knew, or in the exercise of ordinary care should have known, of the dog's vicious and dangerous propensities but negligently failed to chain or leash the dog. Both the statutory and common law remedies are available. Reeves v. Eckles, 77 Ill.App.2d 408, 222 N.E.2d 530 (1966). In this case, the verdict was a general one containing no reference to a particular count or cause of action.

Mrs. Hurst, one of the defendants, testified that although their small 10 1b. dog 'Jinx' was generally kept in the house, she had seen him chase the milkman, the garbage man, and the paper boy, and had once received an angry phone call from a person who identified herself as the paper boy's mother. She said she had no knowledge Jinx had actually bitten anyone. Two brothers who had successively delivered papers to defendants' home each testified to having been bitten by Jinx. One made a report to his boss but not to the police and did not personally complain to Mr. or Mrs. Hurst. The other young man could not recall whether he had notified Mrs. Hurst. Their mother testified she had phoned Mrs. Hurst three times about the dog during the period her sons were delivering papers. Plaintiff testified Jinx had harassed her no less than 12 times before her injury, and she had told the Hurst children of the dog's conduct.

Defendants contend on appeal that the record fails to show their scienter of the dog's propensities. The evidence essential to sustain the common law count was sufficient, we believe, to warrant the jury's finding. 'Proof may be made by evidence of facts and circumstances from which an inference of knowledge arises.' Domm v. Hollenbeck, 259 Ill. 382, 386, 102 N.E. 782, 783 (1913); the owner of a dog that has shown a disposition to bite or attack can no longer rely on the dog's being harmless (Klatz v. Pfeffer, 333 Ill. 90, 95, 164 N.E. 224 (1928); and it is not the law that an owner must have notice of an unjustifiable biting if he has knowledge of attacks upon persons without actual biting, sufficient to put him upon notice of a dog's vicious propensities (Johnson v. Eckberg, 94 Ill.App. 634, 637 (1900).

At trial, defendants pointed out the disparity in size of Jinx and the plaintiff, stressing the dog's small stature and weight, and having a small child lead this silent, leashed 'witness', in a most tractable mood, about the courtroom before the jury. The plaintiff, they insisted weighed 180 1bs., had terrorized this small dog, and provoked the occurrence, but the jury did not agree. On appeal, defendants continue to claim provocation by Mrs. Steichman which would defeat her statutory claim.

The evidence indicated that on a number of earlier occasions, Jinx had harassed plaintiff by barking, growling, baring his teeth, running in circles about her and making little charges at her. Plaintiff had been bitten by another dog about a month before, and the previous Saturday had thrown a stone at Jinx when the dog appeared halfway down the block. On the day in question, she had with her a spray can of 'Halt' issued by the Post Office for use versus attacking dogs. Plaintiff was watchful of Jinx from several houses away and approached the Hurst property to deposit their mail in a box at the front of the house only after observing the dog disappear around the back. Plaintiff walked down a neighboring driveway and stood at the corner of the Hurst home looking for Jinx. Not seeing him, she started across the lawn, but then heard his collar tags jingle as he appeared around a corner. When Jinx was three feet away, growling and barking, plaintiff sprayed him with Halt. The dog ran down the driveway and came up under the car toward plaintiff snarling and barking when she sprayed him a second time. After waiting a moment to see that the dog had not returned, plaintiff went up onto a concrete stoop and deposited the Hurst mail in their box. When she turned around, Jinx was there with teeth bared, growling and barking. Plaintiff stood there a minute, tried to back up to ring the bell, attempted to walk to each side but the dog followed her movements. Jinx charged at her leg. When his teeth were about six inches away, she pulled her leg to the side, spraying Jinx as she fell on her knee to the concrete sidewalk beyond the raised stoop. She cried after she fell, picked herself up and continued on her route, noticing pain and at lunchtime observed her knee was swollen and discolored.

Defendants rely on Siewerth v. Charleston, 89 Ill.App.2d 64, 231 N.E.2d 644 (1967), but we find the factual situations incomparable. In that case, two young children had several times kicked an injured dog lying upon its owner's porch and one of them was bitten after they had been requested to leave. Plaintiff in this case was performing a lawful service in delivering mail to the defendants' home and had reason to be apprehensive of Jinx. He was a little dog true, but one often at large with a relish for harassment of persons whose duties brought them within his range. Plaintiff's acts in spraying Jinx were not unpeacable or provocative but were reasonable measures for self protection evoked by the dog's...

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11 cases
  • Toney v. Bouthillier, 1
    • United States
    • Court of Appeals of Arizona
    • May 19, 1981
    ...... This is also an issue for resolution by the trier-of-fact rather than upon motion for summary judgment. See Steichman v. Hurst, 2 Ill.App.3d 415, 275 N.E.2d 679 (1971).         Plaintiff has also asserted that her complaint states a cause of action pursuant ......
  • Lymberis v. Wu, 1-18-1251
    • United States
    • United States Appellate Court of Illinois
    • May 9, 2019
    ...He contends his proposed jury instruction was an accurate and necessary statement of the law set out in Steichman v. Hurst, 2 Ill. App. 3d 415, 275 N.E.2d 679 (1971), and that the trial court's failure to give the instruction deprived him of a fair trial. He asks us to reverse and remand fo......
  • Vanderlei v. Heideman, 79-243
    • United States
    • United States Appellate Court of Illinois
    • April 15, 1980
    ...... caused the injury and that liability may not be imposed "as a pure penalty for dog ownership." (87 Ill.App.2d at 262, 231 N.E.2d at 9.) In Steichman v. Hurst, 2 Ill.App.3d 415, 275 N.E.2d 679 (1971), the court refused to bar recovery on the grounds of provocation although the mailman sprayed ......
  • VonBehren v. Bradley, 4-94-0131
    • United States
    • United States Appellate Court of Illinois
    • October 26, 1994
    ...... Plaintiffs liken this case to Steichman v. Hurst (1971), 2 Ill.App.3d 415, 418-19, 275 N.E.2d 679, 681, wherein it was held that the use of a repellent spray on an attacking dog . Page ......
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