Swift v. Applebone

• Citation: 23 Mich. 252
• Court: Supreme Court of Michigan
• Decision Date: 07 July 1871
• Parties: Samuel Swift and another v. Isaac Applebone

23 Mich. 252

Samuel Swift and another v. Isaac Applebone

Supreme Court of Michigan

July 7, 1871

Heard May 9, 1871 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Oakland circuit.

This is an action of trespass brought by Isaac Applebone, a minor, by his next friend, Isaac Levi, against Samuel Swift and Henry Swift, to recover damages for personal injuries received by plaintiff from the dogs of defendants. The declaration contains three counts, the first and third of which are founded upon the common law liability for such injuries, and the second is based upon the statute (§ 1645, Comp. L.) which provides that if any dog "shall assault, bite or otherwise injure any person while traveling in the highway or out of the inclosure 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, etc., etc.; 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; and upon the trial of any cause mentioned in this section, the plaintiff and defendant may be examined under oath touching the matter at issue, etc.; and if it shall appear to the satisfaction of the court by the evidence, that the defendant is justly liable for the damages complained of under the provisions of this act, the court shall render judgment against such defendant for double the amount of damages proved and costs of suit; but in no case shall the plaintiff recover more than five dollars costs."

The plea was the general issue, with notice that the defendants would prove that if the said dogs did attack or beset said plaintiff, they did so while in and upon the inclosure of said defendant, and while he was trespassing thereon.

And upon the trial, the counsel for the plaintiff, called said plaintiff, Isaac Applebone, as a witness in his own behalf; and it appearing to the court that said Applebone was a foreigner, and unable to speak or understand the English language, thereupon, counsel for plaintiff produced one Isaac Levi, the next friend of said plaintiff, and asked that said Levi might be sworn to interpret the testimony of said plaintiff, Applebone. Counsel for the defendants objected to said Levi acting as such interpreter, for the reason that said Levi was the next friend of said infant plaintiff, and a party to the record, and therefore incompetent to act as such interpreter. But said circuit judge overruled said objection, and counsel for defendants excepted. And said Isaac Levi was duly sworn, and acted as such interpreter.

And thereupon said plaintiff was duly sworn (the oath being first duly administered to him by said interpreter), and testified, through said interpreter, to the circumstances of the biting, and the extent of the injuries received.

And thereupon one Edward Banner was called and sworn as a witness for plaintiff, and testified that he was a stage driver, and drove between Pontiac and Lapeer; that he heard of plaintiff being bitten; that he had seen at defendants' a bull-dog and a shepherd dog, before this. And thereupon, counsel for plaintiff proposed to show the vicious character of these dogs by this witness; to which proposed proof counsel for defendants did then and there object, for the reason that the same was incompetent. And thereupon counsel for plaintiff stated to the court, in the presence and hearing of the jury, that they proposed to further show that the dogs were vicious, and had been for a long time, and the defendants knew of the vicious character of the dogs before the attack upon plaintiff. Thereupon, this witness testified that he heard of the injury to the plaintiff by these dogs, and that these dogs had often come out quite viciously at his stage team before he heard of the biting of the plaintiff, and once nearly threw his leaders out of the track; that they did this as much as a month before he heard plaintiff was bitten; that he passed the defendants' house every day, one day up and one day down, in the forenoon about 10 o'clock and in the afternoon about 3 o'clock, and that these dogs were accustomed to come out at him.

And thereupon, one Oren E. Bell was sworn as a witness for plaintiff, and testified that he lived in Oxford, and knew defendants, and where they reside, and that they have lived there about two years, and that they are both on the farm together. And thereupon, counsel for plaintiff proposed to prove by this witness, that, a few days after these dogs attacked the plaintiff, the witness was passing defendant's house, in the highway, with his horse and buggy, and that these dogs came out and attacked witness' horse and threw him down and injured him. To which proposed proof, counsel for defendants did then and there object, for the reason that the same was irrelevant and incompetent. But said circuit judge overruled said objection, and counsel for defendants excepted. And thereupon, this witness testified that a day or two after the attack on the plaintiff, he was passing defendants' house, and the dog either made an attack on his horse or his dog. It was after dark, and the dog of the defendants ran between his horse's legs and threw him down and injured him. The dog came out ferociously and Swift did all he could to call him back, but could not. And thereupon, counsel for plaintiff asked this witness the following question, to wit: "What was the character of these dogs...