Opinion
No. 17860
Decided March 11, 1924.
Animals — Action for damages for injuries — Common law or statutory remedy — Liability of owner of dog — Section 5838. General Code — Knowledge or negligence by owner unnecessary — Representatives may sue for wrongful death, when — Sections 10770 and 10772, General Code.
1. The right to maintain an action at common law for damages resulting from injuries, which by his negligence the owner of a dog suffers such animal to commit, has not been abrogated by statute and such suit may be maintained either under the statute or at common law.
2. Where such suit is based on Section 5838, General Code, it is not essential to aver and prove the known vicious character of the dog or negligence of the owner.
3. Where injuries so caused resulted in the death of the person injured, action may be maintained for the damages suffered by the widow and next of kin under the provisions of Sections 10770 and 10772, General Code.
ERROR to the Court of Appeals of Belmont county.
This action was brought in the court of common pleas of Belmont county by Joseph Lisk, as administrator of the estate of James Beranek, deceased, against Anna Hora. The petition avers: On or about the 9th day of February, A.D. 1921, the defendant was the owner and harborer of a certain dog, which said dog was of a vicious nature, all of which was well known to the defendant, and on said date said dog of defendant maliciously attacked the said James Beranek, biting his leg and inflicting a large wound on the calf of his left leg, severely lacerating and tearing the same with his teeth. In said wound, as a natural result of said injury, blood poison developed, and the said James Beranek died from the effects of said injury on the 8th day of March, A.D. 1921. The said defendant was negligent in keeping and harboring said dog well knowing the same to be vicious and liable to attack persons at any time.
The petition then sets out the names of the widow and next of kin of the deceased, who, it avers, had been damaged by reason of the death of James Beranek.
A motion of the defendant to make the petition more definite and certain by setting forth the period of time during which it was claimed said dog was harbored by defendant, whether said dog was running at large at the time deceased was bitten, where he was at the time of the injury, and also the acts claimed to constitute defendant's negligence in keeping the dog, was overruled, and thereupon the defendant filed an answer which is a general denial of the averments of the petition.
At the beginning of the trial of the case, counsel for defendant asked that plaintiff be required to elect whether he was prosecuting his action under the statute or at common law. Without requiring such election, the court held that the action was under favor of Section 5838, General Code. The trial proceeded within the limitations prescribed by the court. Plaintiff offered evidence tending to show the defendant to be the owner and harborer of the dog, and that the dog caused the injury to plaintiff's decedent, but did not attempt to introduce any testimony with reference to the known viciousness of the dog, nor as to the negligence of the defendant, except testimony to show that the same dog had previously bitten another person, and that the defendant directed him to go to a certain doctor for treatment. This, apparently, was for the purpose of showing the ownership.
The jury returned a verdict for the plaintiff. Upon proceedings in error to the Court of Appeals that court reversed the judgment of the court of common pleas for errors in the admission of certain evidence, and also for instructions given the jury and requested instructions refused, but, as the opinion of that court discloses, particularly upon the ground that in order to recover for the benefit of next of kin, under Section 10770, General Code, the action, under the petition as filed, should have proceeded under the common-law rules, in which event, in order to recover, proof of the vicious character of the dog and knowledge of the defendant would have been required.
Error is now prosecuted to this court to secure a reversal of that judgment.
Messrs. Thornburg Lewis, for plaintiff in error.
Mr. Newell K. Kennon, for defendant in error.
The question whether in order to recover for the benefit of the next of kin by virtue of the provisions of Section 10770, General Code, it is necessary that plaintiff aver and prove the vicious character of the dog and the knowledge of the defendant thereof, is squarely presented by the record in this case. The Court of Appeals answered this question in the affirmative, holding that the trial court erred in directing that the trial should proceed as an action under Section 5838, General Code, and upon such ground reversed the judgment of the common pleas court.
The pertinent parts of that section are as follows:
"A dog that chases, worries, injures or kills a * * * person, can be killed at any time or place. * * * The owner or harborer of such dog shall be liable to a person damaged for the injury done."
Had death not ensued, and had the action been instituted by the person injured, it would not have been necessary to aver and prove that the defendant was negligent in keeping and harboring the dog, well knowing it to be vicious and liable to attack persons at any time; and such averment in the pleading would have been regarded and treated as surplusage. Kleybolte v. Buffon, 89 Ohio St. 61, 105 N.E. 192; Silverglade v. Von Rohr, 107 Ohio St. 75, 140 N.E. 669. The reason for such conclusion is obvious. As was stated in the opinion in the case first cited ( 89 Ohio St., at page 66, 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."
This court applied the same rule in the case last above cited, and held that in order to recover it was necessary to prove only the extent of the in jury and that the defendant was the owner of the dog which caused it. The liability of the owner for damages done by his dog necessarily arises from the doing of a wrongful act, and it does not matter whether the "wrongful act" consists in being the owner or harborer of a dog which injures or kills a person or is the action of the dog, for which the owner by express provision of this statute is made liable. The statute recognizes such injury as the result of a "wrongful act" when it creates a liability against the owner in favor of "a person damaged for the injury done."
The very purpose of Sections 10770 and 10772, General Code (the enactment into our statute of Lord Campbell's Act), as clearly shown by the express provisions thereof, is to authorize an action in behalf of the persons therein designated, brought in the name of the personal representative of the deceased, whose death was caused by wrongful act, neglect, or default, such as would have entitled him to maintain such action and recover damages if death had not ensued. Had Beranek lived he would have been entitled, upon proof of the facts which we have seen are essential under Section 5838, General Code, to have recovered damages for whatever injury he sustained through an act which under the provisions of that section was a wrongful act. It would be absurd if one could recover for injuries sustained in such mannor, and there could be no recovery on behalf of those damaged if the injuries were sufficiently severe to result in death.
It is stated in 3 Blackstone's Commentaries, 158, that —
"In its most usual sense wrong signifies an injury committed to the person or property of another, or to his relative rights unconnected with contract."
The statute, Section 5838, General Code, defines a "wrong," and fixes the liability therefor. Here death having ensued as a result of a wrong for which the deceased could have recovered had he lived, the liability of the owner is not extinguished, but may be asserted, and, if the facts warrant, damages may be recovered under authority of Sections 10770 and 10772, General Code.
It should, however, be here stated that action for such injuries is not necessarily based upon the statute. On the contrary, it is our view that the right to maintain an action at common law for damages resulting from injuries which by his negligence the owner of a dog suffers such animal to commit has not been abrogated by statute, but that a plaintiff may sue either under the statute or at common law.
It is our conclusion, therefore, that no error prejudicial to the defendant's rights was committed by the trial court in directing that the trial proceed upon the theory that the action was based upon the provisions of the statute, and that the reversal of the judgment upon that ground was not warranted.
It is urged that the admission by the trial court of certain evidence objected to by the defendant was error prejudicial to defendant. The auditor of the county was called as a witness and produced from the files of his office an application for a dog license dated January 13, 1920, which purported to have been signed by the defendant Anna Hora, and which, over the objection of the defendant below, was introduced in evidence and read to the jury. The objection was based upon the ground that such paper was not competent evidence and could not be received without first showing that it had been signed by Anna Hora or that she had caused it to be filed.
Section 5652, General Code, requires that every person who keeps or harbors a dog shall at the time therein designated file in the office of the county auditor of the county in which such dog is kept or harbored an application for registration, and also sets forth the requirements thereof as to description of the dog, name of the owner, etc. It therefore appears that the application in question was a document required by law to be filed in the office of the county auditor and was in his custody and control as such official, and therefore came within the rule that official documents or papers required by law to be made and filed with a public official being found in appropriate custody and control may be produced in evidence without preliminary proof of their genuineness.
For the reason stated, the judgment of the Court of Appeals is reversed and that of the common pleas affirmed.
Judgment reversed.
WANAMAKER, ROBINSON, DAY and ALLEN, JJ., concur.