Trager v. Thor

• Decision Date: 06 April 1993
• Docket Number: Docket No. 132240
• Citation: 501 N.W.2d 251,199 Mich.App. 223
• Parties: Randy TRAGER, Next Friend of Rachael Trager, a Minor, and Randy Trager and Brenda Trager, Individually, Plaintiffs-Appellants, v. Robert THOR, Defendant-Appellee, and Thomas Thor and Patricia Thor, Jointly and Severally, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 251

501 N.W.2d 251

199 Mich.App. 223

Randy TRAGER, Next Friend of Rachael Trager, a Minor, and Randy Trager and Brenda Trager, Individually, Plaintiffs-Appellants, v. Robert THOR, Defendant-Appellee, and Thomas Thor and Patricia Thor, Jointly and Severally, Defendants.

Docket No. 132240.

Court of Appeals of Michigan.

Submitted July 8, 1992, at Detroit.

Decided April 6, 1993, at 9:00 a.m.

Released for Publication June 24, 1993.

Paul D. Sherr, P.C. by Paul D. Sherr, Birmingham, for plaintiffs-appellants.

Collins, Einhorn & Farrell, P.C. by Noreen L. Slank, Southfield, for defendant-appellee.

Before MURPHY, P.J., and SHEPHERD and EVELAND, ^* JJ.

PER CURIAM.

Plaintiffs commenced this action for damages arising from injuries sustained when Rachael Trager was bitten by an English Sheepdog owned by defendants Thomas and Patricia Thor. In addition to suing these defendants, plaintiffs also sued Robert Thor, the father of Thomas. Robert Thor was present at his son's home to supervise certain yard work. Thomas and Patricia went out, leaving Robert Thor to watch his grandchildren and their playmate, Rachael Trager, who was six years old at the time of the incident. Plaintiffs' second amended complaint alleges that "Robert Thor was on the premises and was the person in whom the care and control of the English Sheepdog was reposed." The complaint alleges that defendants are jointly and severally liable for Rachael's injuries under: (1) M.C.L. § 287.351; M.S.A. § 12.544, (2) the common law, and (3) a general claim of negligence. Plaintiffs appeal as of right from the trial court's grant of summary disposition in favor of defendant Robert Thor (hereinafter defendant). We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

Defendant moved for summary disposition pursuant to MCR 2.116(C)(10), contending, among other things: (1) the "dog-bite" statute applies only to owners of the dog; (2) a claim under the common law must fail against defendant because liability is imposed only on "owners or keepers," and defendant is neither; and (3) plaintiffs' "generalized negligence theories" are not recognized in Michigan (the written motion) or that liability is imposed only upon owners under a negligence theory (oral argument on motion).

The trial court granted defendant's motion, ruling from the bench:

Well, as I have analyzed it, the dog bite statute has eliminated the keeper requirement and it has to be an owner.

Well, clearly these people [sic, defendant] were not an owner of the dog. So I have no problem with that.

The common law, there has to be a showing of the--does cover more than just the owner but there has to be a showing of the knowledge of the dog's vicious propensities under the common law statute [sic]. And that is not shown in this case at all.

And then there has to be a breach of duty on the part of the keeper or the one in charge to apply the general negligence statute [sic].

And I think that the complaint, while good as to the owners of the dog, fails as to these visitors [sic, defendant] in the house even though they were related.

So I felt upon reading the motion that it would not be justified and that they [sic, defendant] be retained in the case. And I am going to grant the Plaintiff's motion in this--or the defendant's motion in this case as to the father.

And so I just feel that the case--[does not] stand up as against these people [sic] were just temporarily taking over the house and watching out for things while the children went to the market.

And so I am going to grant the motion.

I Introduction

As will be discussed in greater detail in section III, infra, there has long existed a common-law cause of action for damages for injuries from attacks by domestic animals known by their owners or keepers to be vicious. Nicholes v. Lorenz, 396 Mich. 53, 59, n. 3, 237 N.W.2d 468 (1976). The keeping of such an animal subjects the keeper to strict liability for damages arising from the vicious nature, i.e., liability without fault. See, e.g., Papke v. Tribbey, 68 Mich.App. 130, 136, 242 N.W.2d 38 (1976).

Very early in this state's history, the Legislature enacted a statute intended to ameliorate the burden of proof required under the common law, particularly with respect to attacks by dogs, because "the evidence of [the dog's vicious] propensity would generally be in the knowledge mainly or exclusively of the owner himself, and it often occurred that his misconduct in failing to restrain a dog he knew to be vicious could not be shown." Elliott v. Herz, 29 Mich. 202, 202-203 (1874). The first such "dog-bite statute" was apparently 1850 P.A. 161. See Nicholes, supra, 396 Mich. at p. 58, 237 N.W.2d 468. The 1915 codification of that act provided that if a dog caused certain damages, including personal injuries, "the owner or keeper of such dog" shall be liable for double damages, "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." 1915 C.L. 7270. The dog-bite statute did not extinguish or supersede the common-law action against keepers or owners of dogs known to be vicious. Nicholes, supra, p. 59, 237 N.W.2d 468; Wojewoda v. Rybarczyk, 246 Mich. 641, 643, 225 N.W. 555 (1929).

By 1919 P.A. 339, our Legislature enacted the Dog Law of 1919, M.C.L. § 287.261 et seq.; M.S.A. § 12.511 et seq., which, among other things, provides for the licensing of dogs, regulates the keeping of dogs, and provides a remedy for damage to livestock or poultry by dogs. The Dog Law specifically provides that nothing therein shall be construed as limiting the common-law liability of the owner of a dog for damages committed by it. M.C.L. § 287.288; M.S.A. § 12.539.

In 1929, the Legislature repealed 1915 C.L. 7270, the dog-bite statute then in existence. 1929 P.A. 309; Grummel v. Decker, 294 Mich. 71, 75, 292 N.W. 562 (1940). That dog-bite statute, as noted above, imposed liability upon a dog's "owner or keeper."

Thereafter, for the next ten years, persons bitten by dogs were apparently relegated to bringing claims under the common law, until, in 1939, the Legislature enacted another dog-bite statute. 1939 P.A. 73, M.C.L. § 287.351; M.S.A. § 12.544. This version differed substantially from 1915 C.L. 7270. Whereas the earlier version remedied the "killing, wounding or worrying" of domestic animals as well as the "assault or bite" of a person, the 1939 version only prescribes a remedy when a dog "shall without provocation bite any person." Moreover, the double damages provision was not included. Finally, and most important for present purposes, while the earlier law expressly imposed liability for damages on a dog's "owner or keeper," the 1939 act contains no such reference to a dog's "keeper."

II Dog-bite Statute

Plaintiffs first argue that the trial court incorrectly interpreted the dog-bite statute, M.C.L. § 287.351; M.S.A. § 12.544, when the court granted summary disposition on the ground that defendant was not an owner. We disagree.

M.C.L. § 287.351(1); M.S.A. § 12.544(1) provides in pertinent part:

If a dog bites a person, without provocation while the person is on public property, or lawfully on private property, including the property of the owner of the dog, the owner of the dog shall be liable for any damages suffered by the person bitten, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness. [Emphasis added.]

Plaintiffs argue that the definition of "owner" found in the Dog Law of 1919 should be applied to the dog-bite statute. Section 1 of the Dog Law of 1919, M.C.L. § 287.261(2)(c); M.S.A. § 12.511(2)(1), defines an "owner" as follows:

"Owner" when applied to the proprietorship of a dog, means every person having a right of property in the dog, and every person who keeps or harbors the dog or has it in his care, and every person who permits the dog to remain on or about any premises occupied by him.

We reject plaintiffs' contention that the two statutes relate to the same subject and must therefore be read and construed together. It is a maxim of statutory construction that statutes in pari materia, i.e., those having a common purpose or relating to the same person or thing or class of persons or things should be read together as constituting one law. Michigan Humane Society v. Natural Resources Comm, 158 Mich.App. 393, 401, 404 N.W.2d 757 (1987). However, for this rule of construction to apply, there must first be an ambiguity in the statute at issue. See Lorencz v. Ford Motor Co, 439 Mich. 370, 376, 483 N.W.2d 844 (1992) (if the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted). See also Kimes v. Bechtold, 176 W.Va. 182, 185, 342 S.E.2d 147 (1986) (rule only applies when statute ambiguous).

Furthermore, although the two statutes both relate to dogs, their purpose is not sufficiently common to invoke the rule of construction applicable where statutes are in pari materia. Cf. Michigan Humane Society, supra, 158 Mich.App. at p. 405, 404 N.W.2d 757. We agree with our Supreme Court's assessment of the predecessor statutes, 1915 C.L. 7270 and 1915 C.L. 7274, in a different context: "Although they have some points of similarity, the acts cover different subjects." Wojewoda, supra, 246 Mich. p. 644, 225 N.W. 555.

Also, we cannot accept plaintiffs' argument that the Legislature contemplated that the definition of "owner" set forth in the Dog Law of 1919 would be applicable to the dog-bite statute enacted in 1939. In 1929, the Legislature expressly repealed 1915 C.L. 7270, which imposed liability upon owners and keepers of dogs. Ten years later, the Legislature enacted a dog-bite statute that by its terms applies only to a dog's owner. In construing an amendment to a statute, it is presumed that a change in phraseology implies that a change in...