*1 McFarlane McFarlane. mandatory except fraud. In the cases actual allege complaint the bill of does case at bar, fraud. the trial court is with costs reversed,
The order of to defendant. J.,C.
Btjshnell, and Boyles, North, Chandler, McAllister, Wiest, concurred. Butzel, MASSENGILE v. PIPER. por Jury. Dog—Scienter—Question
Animals — injuries dog bite, presented action for because of question for as to whether or not defendants knew or had grounds reasonable that their chow had vicious believe propensities. JJ., dissenting. Chandler, North, Appeal Wayne; (Louis pre- C.), Cramton J., siding. (Docket Submitted 1940. June No. 38, 41,162.) Calendar No. Decided October 1940. Massengile against Case Mattie Frank S. personal injuries
and wife for sustained when bitten dog. plaintiff. Judg- defendants’ Verdict ment for defendants non obstante veredicto. Plain- appeals. tiff Reversed and ordered entered on the verdict. Reports.
G54 n (Leonard Qrabow, of coun- L. Nedwin Smokier sel), *2 Poole, B. (John & for counsel),
Hesse Littell defendants. .(dissenting). appeal This is an a verdict notwithstanding entered action in favor of The by
rendered inflicted damages injuries is for personal and owned defendants dog kept by her chow by who are husband and wife. material
The facts are not in Plaintiff dispute. employed defendants in their by doing- home and laundry general housework. She worked one or two days week, about 8 a.m. and arriving- leav- about 4:30 ing On June p.m. Mrs. 8, 1937, Piper informed plaintiff away was going and would not return until after left plaintiff day. She instructed plaintiff open the to an gate enclosure where the him dog was confined and to let into the house. About 4 in p.m., accordance with the instructions given her, plaintiff went en- closure and, as she came to the gate, the dog ran on the gate and up then ran to the back of the en- closure. Plaintiff returned to the house and went back a time; second and when plaintiff ojiened the gate the dog immediately upon her jumped knocked her down, severely her biting arms and hands. The attack lasted about two when minutes, a neighbor came to her rescue. When the cause came on for trial, testimony was introduced that plain- tiff had been in the employ defendants for a period about six months,- that plaintiff did not provoke the attack,- dog weighed about 40 or 50 pounds, was about 13 months old at the time her received injuries, and had been kept Massengile by defendants he was It since two months old. appears also that when came to work ’ through door of back growl would bark and at her. At such times Mrs. quiet would hold him down. kept in an enclosure 20 but feet, night kept the house. appeals Plaintiff and contends that there was evi deciding dence- of scienter the case. this case we have mind that evidence entitled to have given the most favorable construction it every will bear and to have the benefit of fair in may guided ference that be drawn from the evidence, processes reasoning applicable prin sound ciples of law, Frebes v. Co., Railroad 367; Mich. (Comp. *3 and that No. Act Pub. Acts 1939 73, Laws Supp. § Supp. Stat. Ann. 9077-1, 1940 Cum. §12.544), dispensing necessity proof with the of of arising dog scienter in actions out of has no bites, application to the facts in the case at bar. language
The used the recent case of Grummel applicable Decker, ante, is to the facts herein involved. In that we said: case arising “In all cases under the common it is law, necessary prove to aver scienter., That is, that the owned defendants was n dangerous character and that the it. knew “ ‘Scienter is mystery, magie not word of or meaning. It is
merely
expressive
an
word retained from tie
Latin
plead-
old
forms of
ing signifying in
commonly
the
alleged
connection
used that the
crime
or
designedly,
tort was done
understanding^, knowingly,
guilty
or with
knowledge.
necessary
If
affirmatively negative
supposition
the
of
ignorant
alleged
under
facts
information,
innocence
the
in this
scienter
’ People
plainly apparent.
Gould,
Upon cross-examination, lows : dog) jumped up (the Togo ever
“Q. Had you before? had. he never No, “A. you you molested or harmed he ever “Q. Had
any way before? “A. No. * * * you ever know of Did “Q. Never had. harming anyone molesting ? else him No. “A. did?
“Q. You never
“A. No.” following finding court made the The trial facts: up never in the
“He was tied house. He had house, when this run of the maid was there as well Whoever was there, others. anyone run of house. He could contact, will, *4 premises. in the “During daytime, good dog, the of he the the kept according
was outside, was, and because he testimony, the destructive to rose he bushes, confined within a smaller area. ‘‘During all this time that the house, was in the day and the maid was the house—a a week days month, then for several months two doing work about house, the both when the week— Massengtle lady there is no not, and when there, of the house was plaintiff testimony of that the this any being way, her in even his ever alarmed around, being together, and for these barks and growls accompanied house; to the that admission testimony that no that ever occurred after- but, wards. Togo
“The of the herself is jumped up never or harmed her. never knew She harming molesting any one else. his or And ’ that is after several months contact with him. She opportunity had the to observe arrival of the the people the callers.” tradesmen, An of the record examination discloses that there positive proof is no or affirmative of scienter, but plaintiff contends that the be defendants should charged with notice because the fact that their the chow breed and as such was animal an support with an established viciousness. In of this theory, evidence was introduced the that chow breed tendency temperamental, have to be vicious, un- dependable, and treacherous. upon subject liability law the of the of the
keepers dispute. is not Engle,
In Kennett v. 105 Mich. 693, we said: undoubtedly charge “It the law—and the of the court that, so laid it addition facts down— dog, of the from bite prove it was incumbent previous had occasions manifested a vicious disposition, indicating disposition bite mankind, knowledge and that the defendant notice of fact.” (188 146), Smith, Atl. Pa. Andrews the court said:
“Animals such are not horses, oxen, natura, beasts i.e., wild but are beasts, ferae *5 294"Michigan Reports. .[Oct. 658 natura, classed as mansuetas i.e., tamed and domesti- responsible cated and tlieir are not animals, owners any for knowledge acts theirs unless the owners have they likely away are to. break their normal domestic nature and become vicious. probably longest allOf animals, have been the majority domesticated and the vast of them can imperiling pub- be allowed their freedom without safety.” lic approve We the rule in Domm Hollen stated (102. beck, 259 Ill. N. E. Ann. Cas. 1272), the court B, where said: “The owner of an animal is bound to take notice general propensities of the to which it class belongs, obligation guard but he is under no to expect against injuries account of some which he has no reason to on disposition of the individual animal species generally, different from the unless he has disposition. keeper notice of such The owner or aof species to mischief, domestic animal such inclined dogs, any horses and is not oxen, liable injury person committed it to the un- another, less it be shown that the animal had a mischievous propensity had notice injury to commit such' an and the owner of it or was attributable * * * neglect part. some other on his presumption natural from the habits of is that they per- docile tame, both harmless, as to property, sons and and the owner of is not damages resulting liable for from the vicious or mis- knowledge chievous acts of the animal unless he had propensities, of his mischievous or vicious such .and knowledge proved. (1 Thompson Negli- must he ” gence, 881.) § In our as to the character- dogs together istics of the breed of chow other with light submitted considered in the what incomplete must establish is so that a ver- Massengile *6 diet, tbe rendered the same would be result conjecture. bolding of tbe
"We are constrained to affirm the costs. trial court. should recover Defendants concurred with North, Chandler J. ques- tbe I am of tbe that McAllister, knowledge of tbe tion of whether defendants bad dog jury. propensities of their was for tbe dog* tbe There was considerable evidence that mani- savage disposition. Although plaintiff a fested dog growled repeatedly in tbe tbe home, a servant Piper to work. whenever she came When Mrs. would go to tbe door to let tbe into tbe it necessary quiet dog would be to bold tbe to him. persons There was that when other came necessary grab dog to tbe it door, would be tbe keep jumping and bold him in order to him from at such visitors. When was attacked tbe dog, neighbor, a William Dawe, rushed over tbe severely bouse and found that bad been lying bitten and was on tbe floor tbe standing growling. above her Plaintiff testified that she bad a conversation with defendant Florence Piper before tbe accident and that Mrs. bad previously her very good told that she bad a bad employ, maid in her keep but that she could not they on account of tbe think and that did not they could/keep that him because of tbe trouble be giving testimony by was Dr. them. There was further practicing veterinary surgeon, a
Kline, by general of tbe chow breed, nature and character, tendency have a is to be vicious and that such breed temperamental, undependable, and treacherous. Taylor, Dr. a veterinarian, called as a witness Reports. handling practice in the his that in
defendants, stated strong likeli- there was breed, chow regular approached his such a if that, hood he might making up he him,” “without first duties engaged in had been Sahúman, who be bitten. Mr. caring period of 32 for a the business boarding years large kennel, and who maintained dogs, chow breed testified of chow number untrustworthy dis- bad and reliable, not snap apt per- they position; bite making up with he one, after ; even that, sons and it. back on Under the turn his would question for the to de- it was a recited, above *7 knew had reasonable termine whether question grounds to believe propensities. non veredicto obstante should be set judgment entered in accordance with the aside and jury, with costs to verdict Boyles concurred with Mc- Butzel, J. Allister, '{concurring). I concur in the Wiest, Mr. Justice McAllister. Knowledge of viciousness does neces- sarily a first bite. await J., C. did not sit.
Bhshnell,