Argued October 4, 1971. —
Decided November 2, 1971.
APPEAL from a judgment of the circuit court for Racine county: THOMAS P. CORBETT, Circuit Judge. Reversed.
For the appellant there was a brief and oral argument by Joseph J. Muratore of Racine.
For the respondents there was a brief and oral argument by Theodore W. Harris of Racine.
This is an appeal from a jury verdict which found that the defendant, Justin S. Gorelik, negligently kept a vicious or mischievous dog which caused serious personal injuries to the minor plaintiff, Mark Chambliss. It was alleged the plaintiff was struck by an automobile driven by Laura Lyons when he ran into a street to escape the pursuit of a dog named Tipper. The plaintiffs' complaint originally stated three separate causes of action: (1) A cause of action for nuisance, (2) a cause of action for common-law negligence, and (3) a cause of action brought under sec. 174.02, Stats. After the plaintiffs rested their case, they abandoned the cause of action for nuisance; and on motion of the defendant, the trial judge dismissed the cause of action for common-law negligence, because there had been no proof of scienter, i.e., that the defendant knew that the dog was mischievous or vicious.
Prior to trial, as a result of a settlement agreement subject to the outcome of the trial, Laura Lyons and her insurer were dismissed as defendants in the trial.
The personal injuries occurred on March 14, 1966, in the early evening hours in the city of Racine near the Washington Park High School. The driver of the car testified that the accident happened between 7:15 p.m. and 7:30 p.m. The police officer who made the investigation at the scene said he was called at 7:20 p.m. He stated that at the time he was called it was dark.
Although Justin S. Gorelik was the defendant herein and was the acknowledged keeper of the dog, the dog actually belonged to his fourteen-year-old son, Paul. Tipper was part German Shepherd and part Collie. It was approximately nine months old.
On the evening in question, Paul and some of his friends took the dog on a leash to the lawn in front of the high school. They unleashed the dog and permitted him to play football with them, i.e., they would throw the ball and the dog would try to catch it. The plaintiff, Mark Chambliss, and two of his friends were walking west on the sidewalk in front of the high school. As they approached, the dog, which had been lying down at the time, raised up and looked at them. When the approaching boys saw the dog, they shouted to Paul and his friends to hold him. One of Paul's friends called the dog to him and he was held until the boys on the sidewalk were out of sight. The dog was then released, and Paul and his friends continued to play football. After walking an unspecified distance, but apparently to a point in the vicinity of the west boundary of the schoolyard, Mark and his friends heard footsteps behind them. On turning around, they saw the dog running up to them. Mark testified:
"He was running up to us, you know, real fast, and kind of growling like [later testimony by Mark indicated that he in fact heard no sounds], he was running towards us."
Robert Jackson said, ". . . it looked like he wanted to eat somebody up." Vernon Lott testified the dog "was coming pretty fast."
All three boys ran westward along the sidewalk. The Jackson boy veered off to the left and climbed on top of a car parked in a lot next to the high school. The Lott boy ran across the street and climbed onto a car parked on the north side of 12th Street. Mark Chambliss continued to run until he was at a point approximately 40 yards from the east wall of the Park Pool Gymnasium. It appears from the facts that at this point he had been running approximately 100 yards. Although the testimony is disputed, Mark testified that he ran diagonally into the street in a northwest direction. He ran into the path of an eastbound Cadillac automobile driven by Laura Lyons. She stated that she did not see him until he was directly in front of her. She applied her brakes and attempted to turn to the right. Mark was struck by the left front of the Lyons automobile. He was thrown through the air in a northeasterly direction, and his body came to rest on the pavement two or three feet south of the north curb. The only illumination at this time and place was from the headlights of the car. A street light located near the point of impact was not operating.
The Jackson boy testified that he witnessed the accident and stated that, from his position on top of the car, he saw the dog running behind Mark. He stated that it followed Mark to the edge of the road, at which point it stopped. The dog did not go into the road.
Mark sustained severe injuries in the accident, which resulted in the permanent shortening of one leg and necessitated extensive surgical treatment for a compound fracture. His leg remained in a cast for several months, and there was evidence of permanent disability.
At the time of the accident Mark was fourteen years old and had the reputation of being an outstanding basketball player. There was evidence to show that, subsequent to the accident, his athletic prowess was diminished. He also claimed that his ability to do his schoolwork was less after the accident than before.
The police officer who was called to the scene interviewed several witnesses, including Mark's friends, Robert Jackson and Vernon Lott. The police officer's testimony indicated that Mark ran into the road from the north side of 12th Street. He stated that someone at the scene had told him this. The treating doctor testified that his report showed that Mark had been chasing a dog.
Shortly after the accident the. Gorelik boy located his dog, Tipper, on the south side of 12th Street between the high school and the Park Pool Gymnasium. Until almost two years later, no claim was made that a dog was in any way involved in this accident.
Mark admitted during the course of the trial that in September of 1967, eighteen months after the accident, he had made the statement in a lawyer's office that he had no recollection of anything that happened on the day of the accident except that he recalled that his father picked him up at school. Mark's attending physician stated that at no time did Mark evince any symptoms of amnesia except for the period of approximately four days following the accident when he was in a critical condition.
There was abundant evidence in the record to show that the dog was playful and would not hurt anyone. It was described as being a "kind and friendly" dog. A municipal school crossing guard, Louise Sprague, stated that she frequently saw the dog and that her children played with it and had never been injured. A neighbor of the Goreliks stated, however, that on one occasion two twelve-year-old girls jumped on top of a car to escape the dog. This alleged conduct took place at some unspecified date subsequent to Mark's injuries. In reviewing the evidence the trial judge stated:
". . . there is . . . no proof that the girls were frightened and got on the car. The dog walked back in the yard, and the girls walked away, and there isn't any testimony that the dog did other than move toward the girls, and at this point they ran."
The jury returned a verdict which found that the defendant, Justin S. Gorelik, was negligent in keeping a dog that was "mischievous." Damages were awarded to Mark Chambliss in the sum of $35,000, and the sum of $5,661.78 was awarded to Mark's father for past and future medical expenses. Justin S. Gorelik was found 70 percent negligent, Laura Lyons was found 20 percent negligent, and Mark Chambliss was found negligent in the amount of 10 percent for negligent lookout and failing to yield the right of way.
At the close of the plaintiffs' case, the defendant moved for a directed verdict on the grounds that there was no evidence to show that the defendant was the keeper of a mischievous or vicious dog. The same motion was made after defendant had rested, and it was renewed on motions after verdict. The defendant's motions were denied, and judgment on the verdict was entered for the plaintiffs.
Appeal has been taken from the judgment.
At common law the owner or keeper of a dog was not liable for the vicious or mischievous acts the dog unless he had prior knowledge of the vicious or mischievous propensities of the dog or unless the injury was attributable to the negligence of the owner or keeper. Nelson v. Hansen (1960), 10 Wis.2d 107, 102 N.W.2d 251. In the instant case the action for common-law negligence was dismissed, because there was no proof of defendant's knowledge of any vicious or mischievous propensity of the dog, Tipper. Accordingly, the case proceeded, and judgment was rendered only on the liability which an owner or keeper could incur under sec. 174.02, Stats. That statute provides:
"174.02 Owner's liability. The owner or keeper of any dog which has injured or caused the injury of any person or property or killed, wounded or worried any horses, cattle, sheep, ranch mink or lambs shall be liable to the person so injured and the owner of such animals for all damages so done, without proving notice to the owner or keeper of such dog or knowledge by him that his dog was mischievous or disposed to kill, wound or worry horses, cattle, sheep, ranch mink or lambs; but when ranch mink are killed, wounded or worried, it shall be proven that the dog forcibly entered the enclosure in which they were kept."
Although Tatreau v. Buecher (1949), 256 Wis. 252, 40 N.W.2d 509, tended to indicate that the statute imposed absolute liability, other and earlier cases held to the contrary. Schraeder v. Koopman (1926), 190 Wis. 459, 209 N.W. 714; Legault v. Malacker (1917), 166 Wis. 58, 163 N.W. 476; Harris v. Hoyt (1915), 161 Wis. 498, 154 N.W. 842.
These seemingly contrary holdings were resolved in Nelson v. Hansen, supra, wherein the court determined that the legislature did not impose or intend to impose strict liability on the keeper of a dog. It was also determined that an action brought under the statute continued to be one for negligence but that the statute eliminated the necessity of proving scienter. In all other respects, the responsibility of an owner or keeper remained the same. As we said in Nelson v. Hansen, supra, page 115, after discussion of early cases:
". . . the statute only applied to injuries from mischievous or vicious acts of a dog for which at common law the owner would not be liable unless he had knowledge or ought to have known of such propensities."
Accordingly, there was no liability for the innocent act of a dog unless it could be found that there was negligence on the part of the owner in permitting an otherwise innocent act. Koetting v. Conroy (1937), 223 Wis. 550, 270 N.W. 625; Schraeder v. Koopman (1926), 190 Wis. 459, 209 N.W. 714. For cases under the statute in which no proof of scienter is required and where there is no evidence of the keeper's negligence — and there is none in this case — there must be proof that the dog was vicious or mischievous. The jury was properly instructed in this respect. The trial judge, following the suggested Wisconsin Civil Jury Instruction 1390, advised the jury: "The word `mischievous' as used here means vicious or having a disposition to do harm." The source of this instruction is apparently the case of Legault v. Malacker, supra, at page 62, wherein the question was asked whether the statute made the owner of a rabid dog liable for biting a child. We quoted with approval the words of Judge COOLEY in Elliott v. Herz (1874), 29 Mich. 202, where, in referring to a similar statute, he stated it "`manifestly refers to a vicious and destructive habit, from indulgence in which the mischief has resulted.'"
Thus, under the statute, it continues to be necessary to show that the dog, prior to the act complained about, had vicious and destructive habits. The statute merely eliminates the necessity of proving that the keeper had such knowledge. Under the evidence in this case, and bearing in mind the applicable law, the evidence was insufficient for the jury to have returned a verdict finding that the defendant, Justin S. Gorelik, was negligent in keeping a dog that was mischievous. The record is barren of any evidence to show that at any time prior to the accident the dog, Tipper, indulged in any vicious or destructive habits. The facts are wholly to the contrary.
The only incident that the plaintiffs rely upon other than the conduct of the dog on the night of March 14, 1966, was testified to by a neighbor, Ellen Fehlberg, in reference to two twelve-year-old girls who jumped on a car when Tipper headed toward them. As we pointed out in the resume of the facts, the trial judge correctly stated the incident was insufficient to show that the dog was mischievous, vicious, or that the girls were even frightened. In any event, since the incident was subsequent to the time of the injury to Mark Chambliss, the testimony of Ellen Fehlberg is without probative value.
The applicable law has been restated most recently in Wurtzler v. Miller (1966), 31 Wis.2d 310, 318, 143 N.W.2d 27. We therein stated:
"Where the action is grounded on sec. 174.02 the negligence of the defendant dog owner is established when it is proved he kept a mischievous or vicious dog without proving he knew the dog had such propensities."
The half-grown part-Collie dog, Tipper, evinced such propensities neither to his keeper nor, as far as the record shows, to anyone else. Not only was there failure of proof of scienter, required under common-law negligence, but also there was a total failure of proof in regard to the dog's vicious or mischievous propensities. Although we conclude that the proof of viciousness or mischievousness must relate to a time prior to the incident complained of, it is also apparent that in the instant case there was no evidence that Tipper's conduct in running after the boys was vicious or mischievousness in the legal sense. Although he ran after Mark Chambliss for a distance that the physical facts indicate to have been almost 100 yards, there is no evidence that he snapped at Mark, growled at him, or indulged in anything but, at the most, playful conduct. The boys ran because they were afraid of the dog, not because there was any reason for such fear. Mark had never seen the dog prior to the evening in question, and yet upon first seeing him he asked that the dog be restrained. While it may well have been reasonable, as Mark said, that he "didn't want to wait around and find out what he [the dog] had on his mind," this does not constitute proof of the mischievous or vicious nature of the dog. Moreover, the dog did not follow Mark into the street.
The plaintiffs' evidence was insufficient as a matter of law, and the defendant's motion for a directed verdict on that ground should have been granted. Since this issue is determinative of the entire case, other arguments of the defendant, some of which were meritorious, need not be discussed.
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment pursuant to this opinion.