46 Wis. 345 | Wis. | 1879
This action was commenced in a justice’s court, to recover damages for a cow alleged to have been fatally bitten by a dog of the defendant. The plaintiff recovered a verdict for the value of the cow, on the trial before the justice. The defendant took the case by appeal to the circuit court, where there was another trial on the merits, and another verdict for the plaintiff’. Before judgment, a motion was made for a new trial on a case made, on the grounds, (1) that the verdict was against the law and evidence; (2) that there was no evidence given on the trial to show any liability on the part of the defendant, or to warrant a verdict for the plaintiff; and (3) that the court erred in denying the defendant’s motion
The cause was tried in the circuit court on the pleadings filed before the justice. The complaint, omitting the title of the cairse, is as follows: “ The plaintiff shows against defendant, that on or about the 7th of September, at Aldeu in said county, the defendant’s dog did bite, worry and lug plaintiff’s cow, from the effects of which she was killed, to the damage of $45, for which plaintiff demands judgment and costs of suit.” The answer was a general denial. On the issue thus formed, the cause was tried on its merits, without any objection that the complaint was defective. But it will be seen that no scienter is alleged, and none was proven. If, therefore, the defendant’s liability is to be placed upon the ground that he negligently kept a dog accustomed to attack and bite cattle, with knowledge of the dog’s mischievous propensity, then it seems to me the verdict is not only against evidence but is wholly unsupported by evidence. For there was not only a failure to allege and prove a scienter, but there really is no evidence tending to show, or which would warrant the inference, that the dog was accustomed to attack and bite cattle of his own accord. Consequently, if we were to treat the complaint as amended by an averment of scienter, this would not help the verdict, because neither such scienter nor the vicious propensity of the dog was shown on the trial.
But the learned counsel for the plaintiff does not rest the responsibility of the defendant on any such ground. He insists that the action is for an injury resulting from the defendant setting his dog upon the cow, and .that the case was tried upon that theory. In that aspect of the case, it is apparent that the complaint is very defective; but if there was evidence whieh would warrant .the jury in finding that the injury was
Assuming, then, the defect in the complaint to be an amend
The circuit court gave a charge in the case, which was not excepted to by either side, and which is not incorporated in the bill of exceptions. It was, however, filed among the papers, and has come up with the record. No question upon the charge is properly before us. But the charge was read and commented on at the bar by the learned counsel for the de
No case is insignificant which involves a new and important rule of decision. And I am afraid that the decision of this otherwise petty case may prove a dangerous precedent.
The complaint is confessedly bad. Under repeated decisions of this court, the defect might be amended, or considered amended, after verdict, if it were single. The difficulty is that it is double. The complaint may be amended in either of two ways, each amendment making it for an essentially different action. And the learned judge of the court below instructed the jury that the plaintiff might recover for either cause of action. Half of the jury may therefore have found for one cause, half for the other. The counsel of the appellant was understood to say that the cause was litigated below upon one ground. This court holds the judgment good upon the other ground.
It was said that the respondent might have counted on both causes of action in one complaint. Surely, but then the
The code requires the complaint “ to contain a plain and concise statement of the facts constituting the cause of action,” so that he who runs may read and understand. Practice under the code has gone some wray towards making pleadings more uncertain and unintelligible than they were at the common law. And the rule in this case tends to make it safer to file bad pleadings in a double aspect, than good ones in a single aspect.
The subject of the complaint is a dog and a cow, hereditary enemies since the days of the House that Jack built. But in this case, it was the dog that killed the cow. In the light of the evidence, the complaint might be amended to charge the appellant with having set his dog on the cow, and so killed it; the man being sued for his own tort, not for the dog’s. So it might be amended to charge the appellant with having kept scienter a dog used to worry cows, which killed this cow; the man being sued for the dog’s tort, not for his own. Thus the ingenious pleader framed the complaint. My own impression is, that it is meant to charge the tort of the dog, not of the man; for the dog is the nominative case and actor throughout the stating part of the complaint.
It appears that the man set his dog on a herd of cows; but there is no evidence that the cow in question was then in the herd; or that the dog, who was soon recalled by the appellant, then bit any cow in the herd. Indeed, the evidence goes far to show that he did not. On the whole evidence, the jury may have been warranted in finding that the dog killed the cow; but when, the evidence leaves quite uncertain. It may have been many hours after he was set on the herd.
The cow was killed by inj uries to its tail. There was evidence
The complaint states no cause of action. And so, in the light of the evidence, it may be amended both ways; as well in one as in the other. I cannot think that it ought to be amended either way. Conceding the most liberal rule of amendment, I hold this judgment erroneous for the duplicity of the complaint, upheld by the duplicity of the charge. It appears, to me that such recoveries are so uncertain as to be essentially dangerous to the administration of justice. See Pierce v. Carey, 37 Wis., 232.
By the Court. — Judgment affirmed.