Hagenau v. Millard

182 Wis. 544 | Wis. | 1924

The following opinion was filed November 13, 1923:

Doerfler, J.

The principal question presented on this appeal is: Is there credible evidence in the case sustaining the finding of the jury that Millard was a keeper of the dogs?

It appears that the dogs belonged to Mrs. Ritter, and were kept by her in her apartments on the third floor of the Millard building; that during the hot weather in the summer she at times kept them upon the roof of the kitchen; that on a number of occasions the dogs, particularly the puppies, would follow their mistress into the restaurant, where occasionally they received bones from guests patronizing the restaurant; that both Mr. and Mrs. Millard were fond of the dogs and occasionally petted them, and on a number of occasions took them out riding in their automobile; that the dogs were seen on quite a number of occasions in the restaurant, by either patrons or neighbors; and that just before the injuries were inflicted the dogs were seen coming from the Millard ¿restaurant. Such evidence plaintiff’s counsel claims raised a jury issue as to whether Millard was the keeper of the dogs, and -that, the jury having answered the question in the affirmative, such verdict cannot now be disturbed.

Whether or not a person is ao keeper of a dog depends upon the peculiar facts and circumstances of each individual case. Boylan v. Everett, 172 Mass. 453, 52 N. E. 541; Snyder v. Patterson, 161 Pa. St. 98, 23 Atl. 1006.

To be a keeper of a dog one must harbor the animal, and the word “harbor” in its meaning signifies protection; and it has been held that the keeper is one who treats the dog as living at his house and who undertakes to control his actions; “but the casual presence of an animal, or his presence if not so treated, does not constitute him such owner or keeper.” 3 Corp. Jur. p. 106, § 345. See numerous cases cited in notes 14, 15, 16, and 17.

Where a child is the owner of a dog kept on the premises of the father, who supplies it with food and furnishes it with shelter upon his premises, the father is deemed to be a keeper of the dog. Also, where a dog belonging to a servant is kept upon the premises of the master, with his knowledge and consent, the latter is a keeper. 3 Corp. Jur. p. 106, § 345, and cases cited in note. Plowever, where a servant or tenant occupies a distinct portion of the premises of the master, where the dogs are kept, the master is not the keeper. Numerous cases are cited and referred to on the subject of who is a keeper in the note appended to Holmes v. Murray (207 Mo. 413, 105 S. W. 1085), 17 L. R. A. N. s, on p. 431. A reading of these cases serves the purpose of obtaining the general views of various courts upon the subject considered, and will facilitate in a measure the formulation of certain fundamental general rules which may servé as a guide or standard in aid of the solution of the question as to who may be deemed a keeper of a dog; but the principles, as stated by the text-book writers above referred to, and the holdings, of the above authorities, appear to us to be in harmony with the great weight of authority and the principles of natural justice and control the decision of this case.

Dogs belong to a distinct class of domestic animals. They are not outlaws. They serve many useful purposes; are the companions and playmates of youth and the household pets of families. They are protectors of life and of property, and generally manifest human instincts and emotions in a very marked degree. They are now considered property, and the owners are protected in their property rights by law.

In the instant case Mrs. Ritter, the owner of the dogs, was not a member of the Millard family. True, she performed services in and about the Millard premises, and both Mr. and Mrs. Ritter were in the habit of taking their meals at the restaurant.' Mrs. Ritter is a sister of Mrs. Millard, but she occupied separate and distinct portions of the premises and maintained a separate and distinct home or place of abode. It is but natural, under the circumstances, where the Ritters lived in the same building, and where the relationship of master and servant existed between Millard and Mrs. Ritter, that occasions would frequently arise where the dogs would follow their mistress, and might frequently appear upon the premises owned and controlled by Millard, and that their presence would provoke manifestations of affection from time to time on Millard’s part. There is no evidence, however, in the case which tends to indicate that either Mr. or Mrs. Millard could be deemed to be harborers of the dogs; that they furnished them with shelter, protection, or food, or that they exercised control over the dogs. There is no evidence in the case showing that these dogs were so attached to Millard and his wife as to follow them upon the public streets or highways, or that the dogs were the constant companions of the Millards; on the contrary, it would appear that the only control exercised over these dogs was on the part of the Ritters. Under such circumstances it appears to us it is not possible to say that the question of whether Millard was the keeper of the dogs raised a proper jury issue, and we are constrained to hold as a matter of law that Millard was not the keeper.

However much we may sympathize with the unfortunate plaintiff on account of her injuries, in our opinion she should have confined her efforts to recover damages from Mrs. or Mr. Ritter. The judgment of the circuit court is therefore reversed.

By the Court. — Judgment reversed, and the cause is remanded with directions to dismiss the plaintiff’s complaint, with costs.

The respondent moved for a rehearing.

In support of the motion there was a brief by Carl H. Juergens, attorney, and A. J. Schmitz, of counsel, both of Milwaukee.

The motion was denied, without costs, on February 12, 1924.