This is an action instituted by a minor through his father and next friend for personal injuries received from a dog bite. The action was filed pursuant to section 54-601, R. R. S. 1943, which provides as follows: “Dogs are hereby declared to be personal property for all intents and purposes, and the owner or owners of any dog or dogs shall be liable for any and all damages that may accrue (1) to any person, other than a trespasser, by reason of having been bitten by any such dog or dogs, and (2) to any person, firm or corporation by reason of such dog or dogs killing, wounding, worrying, or chasing any person or persons or any sheep or other domestic animals belonging to such person, firm or corporation. Such damage may be recovered in any court having jurisdiction of the amount claimed.”
The defendant filed an answer generally denying the allegation of the plaintiff’s petition, and alleging the plaintiff was a trespasser. The defendant further alleged whatever injuries were sustained by the plaintiff were proximately caused by the negligence of him and his parents and that the plaintiff voluntarily assumed the risk of injury to himself.
At the close of the plaintiff’s case, defendant moved for an order dismissing the petition for the reason that the evidence showed that the plaintiff was in fact a trespasser, thereby falling outside of the provisions of the act. Said motion was denied. Thereafter, plaintiff’s counsel moved the court to exclude testimony presented by the defense on anything other than trespass. The court denied the motion and advised the parties the court would permit the testimony with reference to provocation. At the close of all the evidence, the court refused to instruct the jury on the defenses of assumption of risk or contributory negligence, but did instruct the jury as to provocation and trespass. The jury returned a verdict for the defendant and against the plaintiff.
The evidence discloses that on September 10, 1976, defendant, Susan Courtney, called the plaintiff’s mother to make arrangements for defendant’s 5-year-old son to be supervised by plaintiff’s mother after school. Plaintiff’s mother picked up her younger son and the defendant’s son, both age 5, and brought them to the plaintiff’s home. The plaintiff, Mark Paulsen, age 10, arrived home at the same time, and the children had milk and cookies in the Paulsen kitchen before going outside to play in the plaintiff’s backyard.
All three boys climbed over the fence enclosing the defendant’s yard, which was located immediately adjacent to the plaintiff’s yard. The evidence indicated the boys had scaled the fence before and had seen others going over it. At this point, the evidence appears in conflict. The plaintiff maintains the defendant’s dog began licking the boys. The plaintiff then walked the dog for a few minutes, had the dog sit, and then said, “Come on, Freckles, let’s go.” At this time, the dog attacked the plaintiff, biting him about the face, head, and neck.
The defendant’s evidence was to the effect that the plaintiff had been previously observed, by a witness, antagonizing the dog. On the day of the dog bite, this witness testified he saw the plaintiff gouging at the dog with a stick, “making the dog very, very angry” and “literally torturing the animal.” He saw the plaintiff climb up the fence, reach toward the dog, and the dog got hold of him on the hand. The plaintiff acknowledged the hand injury from the dog in addition to the injuries for which recovery was sought.
The plaintiff’s position at the time of trial and apparently on appeal is that section 54-601, R. R. S. 1943, creates a cause of action for strict liability on the part of a dog owner, and the only defense to the action is one of trespass.
At common law, in the absence of negligence, the owner of a dog was not liable for injuries caused by the dog, unless the animal had a propensity for viciousness and the owner had knowledge of the same. Warrick v. Farley,
We have previously had occasion to examine the provisions of section 54-601, R. R. S. 1943, in the case of Donner v. Plymate,
“Obviously the Legislature was fully aware of the need for protection from the intentional, deliberate, and purposeful acts of dogs and as a result restricted section 54-601, R. R. S. 1943, to those acts manifesting such qualities.
“Dog owners are statutorily liable for any and all damage without proof of scienter or knowledge of dangerous propensities of their dog for biting and by reason of such dog or dogs killing, wounding, worrying, or chasing domestic animals and persons.”
It is, therefore, beyond question that section 54-601, R. R. S. 1943, creates a cause of action based upon strict liability on the part of a dog owner. The question, however, which remains unanswered is whether there is any defense available to an action founded upon strict liability. The answer to that question must depend to some extent upon an analysis of the purpose of the “dog bite” statute and its reasonable application. As noted in Donner v. Plymate, supra, the purpose of the statute, as amended, was to apply to persons as well as animals and to eliminate the requirement of proving scienter and the owner’s knowledge of his dog’s propensities. Nevertheless, it would seem strange indeed if one could now intentionally provoke a dog under any circumstances and yet hold an owner liable under the provisions of the “dog bite” statute. Obviously, some defense must exist in such a case.
An examination of the legal treatises discloses there are defenses available in a dog bite case, even where the cause of action is founded upon strict liability similar to section 54-601, R. R. S. 1943. The courts are not unanimous in their rationale for the specific defense available, but all concur in one
Likewise, it is further clear that whether such provocation was intentional and knowing is a question of fact to be determined by the jury. In 4 Am. Jur. 2d, Animals, § 110, p. 360, the author notes, “The question whether one is guilty of intentionally provoking an animal and is thus barred from recovering for a resulting injury by the animal is generally considered a question of fact * * *.” With that rule, we likewise concur.
The trial court correctly instructed the jury on the question of provocation, and the judgment on the verdict may not, therefore, be disturbed. The judgment of the trial court, entered pursuant to the verdict of the jury, is affirmed.
Affirmed.