Schaller v. Connors

Cassoday, J.

The statute provides that “ the owner or keeper of any dog, which shall have injured or caused the injury of any person or property, or killed, wounded, or worried any horses, cattle, sheep, 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, or lambs.” Sec. 1620, R. S. Thus the statute makes the “keeper” of a dog liable for the injury, even though he be not the owner. The evidence here is sufficient to sustain the finding of the justice that the defendant was the keeper of the dog in question. He testified that he had kept him off and on for three or four years; that he and his folks had fed him; that the dog was in the habit of going with himand was at his house the night of the injury and *323 before. So, under the statute, the defendant, as such keeper, was liable for such injurjq without proving that he had previous knowledge or notice of the mischievous character of the dog. This is conceded by his counsel, so far as the injury to the plaintiff’s person was concerned, but he thinks it was otherwise as to the injury to the plaintiff’s pants; and hence, as to them, he thinks there could be no recovery, except on proof of notice, which he claims was not made.

Assuming such tobe the construction, yet there is evidence that the dog bit the plaintiff’s leg, and that, although the injury was not very severe, it was such as to leave teethmarks on his leg; for which injury alone the justice may, for aught that appears in the record, have rendered the judgment in question. Assuming that he did so, then we would not be justified in reversing the judgment for excessive damages. To reverse a judgment, error should be made to appear affirmatively in the record, as every reasonable presumption is to be indulged in support of the judgment. Accordingly we should feel bound to presume, if necessary to sustain the judgment, that the damages given were not for injury to the pants, but for injury to the person.

But we do not think the section should receive the limited construction sought to be put upon it. The liability for the injury mentioned in the section manifestly includes, not only damages to the body of the’person injured, but also to the clothes he is wearing at the time. Such wearing apparel is so personal to the individual that we cannot think the legislature intended to exclude injury to it from the application of the section.

It is urged upon the part of the plaintiff that the appeal is without any merit, and hence that double costs should be allowed under sec. 2951, R. S. ¥e agree with counsel that no appeal should ever have been taken from the justice’s court to the circuit court, much less from the circuit court to this court; but the appeal seems to have been prosecuted in good *324 faith, and we do not think, therefore, that such double costs should be indicted by way of punishment.

By the Court.— The judgment of the circuit court is affirmed.