Opinion
Decided November 21, 1929.
Animals — Owner liable to trespasser bitten by dog kept on premises — Section 5838, General Code — Exception to rule of non-liability to trespasser without intentional injury.
Under Section 5838, General Code, relative to liability of owner or harborer of dog for damage to another, owner of dog kept on premises was liable for damage to trespasser thereon by reason of bite of dog, regardless of rule ordinarily exempting keeper of premises from liability to trespasser without intentional injury.
ERROR: Court of Appeals for Marion county.
Messrs. Wiedemann, Patton Wiedemann, for plaintiff in error.
Mr. Louis E. Myers, for defendant in error.
Plaintiff brought suit in the municipal court of Marion, Ohio, for damages caused to him by the bite of dog, and other injuries inflicted by the animal which was kept by defendant on the premises of the latter.
Judgment was entered in favor of plaintiff, and error was prosecuted to the court of common pleas, which reversed the judgment on the ground that it was against the weight of the evidence and was contrary to law; and error is prosecuted here for reversal of the latter judgment.
The evidence introduced in behalf of plaintiff tended to prove that he was a hauler by truck, for hire, and that at the time he was injured by the dog he was on the premises of defendant without invitation, and without the knowledge of defendant or any member of defendant's household or any employee of defendant; that plaintiff's purpose in going upon the premises, which he did through a closed gate, was to obtain employment to haul away some rubbish in a public alley, which rubbish plaintiff assumed to have been placed there by defendant; that plaintiff went to the rear of the dwelling house on the premises to make inquiry about the rubbish, and, while thus engaged, the dog, theretofore unseen by plaintiff, sprang into view and inflicted the injury.
Defendant admitted ownership of the dog and that he kept the animal on the premises, fastened with a tie some eight feet long; that he kept the animal for the purpose of watching and protecting the premises; and that there were maintained at prominent places at and on the premises at least four signs bespeaking the presence of a dog, one of which signs read "Cross dog."
Plaintiff testified in rebuttal that he did not see any of the signs.
Thus arose the question whether the keeper of a dog on his own premises is answerable for damages to one who goes thereon as a trespasser.
Section 5838, General Code, is in these words: "A dog that chases, worries, injures or kills a sheep, lamb, goat, kid, domestic fowl, domestic animal or person, can be killed at any time or place; and, if in attempting to kill such dog running at large a person wounds it, he shall not be liable to prosecution under the penal laws which punish cruelty to animals. The owner or harborer of such dog shall be liable to a person damaged for the injury done."
That statute was construed by the Supreme Court of our state in the case of Kleybolte v. Buffon, 89 Ohio St. 61, 105 N.E. 192.
In the opinion, delivered by Newman, J., this language is found, at page 66 of 89 Ohio State, 105 N.E. 194: "The statute imposes an absolute liability on the owner of the dog, and the averment and proof of scienter are unnecessary. The owner is liable regardless of his conduct in the keeping of the dog. Under the statute, the conduct of his property renders him liable, and his own negligence in the matter is wholly immaterial."
Mindful as we are of the general rule in Ohio, that the owner of premises owes to a trespasser thereon no duty excepting the avoidance of willful injury, that portion of the language we have quoted which asserts that the liability is imposed regardless of the conduct of the keeper of a dog, precludes application of the rule which ordinarily exempts a keeper of premises from liability to a trespasser where there has been no intentional injury.
In the case of Lisk, Admr., v. Hora, 109 Ohio St. 519, 143 N.E. 545, the Supreme Court reiterates the doctrine of the Kleybolte case, supra.
The absoluteness of the liability which such a statute creates was earlier announced by our Supreme Court when a statute similar in substance, though not in form, provided liability of a keeper of a dog for injuries to sheep, the case being that of Job v. Harlan, 13 Ohio St. 485, where it is said in the opinion at page 493: "The liability of the owner is declared in express terms, and without any qualification."
These three cases referred to are in line with the text in 3 Corpus Juris, 101, as well as with the reasoning in the case of Whittet v. Bertsch, 39 R.I. 31, 97 A. 18, L.R.A., 1916E, 710.
Plaintiff in error is therefore clearly entitled to have the judgment of the court of common pleas reversed, and that of the municipal court affirmed, and such will be the judgment of this court.
Judgment reversed and judgment of municipal court affirmed.
HUGHES and JUSTICE, JJ., concur.