
    Samuel Swift and another v. Isaac Applebone.
    
      Next friend of plaintiff may act as interpreter. The fact that the next friend of an infant plaintiff was allowed to act as interpreter for a witness who did not speak the English language, is not ground of error. It should not be permitted except for very peculiar and satisfactory reasons, yet, whether it shall be allowed in any particular case rests in the discretion of the judge presiding at the trial.
    
      Damages for bite of vicious dog : Knowledge of vicious character of dog on part of owner in aggravation thereof. In an action for damages for an injury inflicted by a vicious dog, even upon a count under the statute where the liability .does not depend upon the scienter, the fact of knowledge in the owner of the vicious disposition of his dog is a proper subject to be taken into account and weighed by the jury in estimating the damages; and evidence of such knowledge is, therefore, competent. Recklessness of conduct or the want of due and reasonable care is an important element in estimating the damages in such a case, as it is in most cases of tort.
    
      Practice: Alleged errors waived. Where, in such action, there are three counts . in the declaration, and. the verdict of the jury is for the defendants upon two of them and for the plaintiff upon the other, it cannot be claimed in the absence of any motion in the court below for judgment in favor of the defendants, that the court erred in not awarding judgment for the defendants on the whole record, upon the ground that the verdict rendered in their favor on the two counts was inconsistent with any verdict against them on the other count for the reason that all were for the same cause of action; nor that the court erred in not awarding costs to defendants upon the issues found in their favor.
    
      What not the same cause of action. Where there are three counts in a declaration in trespass to recover damages for personal injuries received by the plaintiff from the dogs of defendants, two of which counts are founded on the common-law liability for such injury, and the other based upon a special statute, it cannot be said, as a legal proposition, that they are all for the same cause of action.
    
      Double damages under § ISkS, Comp. L. The proper course to pursue to double the damages in such a case, under § lBkS, Comp. L., is to have the jury instructed to assess the amount of single damages, and state the same' in their verdict, and to apply to the court after verdict for judgment in double the amount of damages so found by the jury.
    
      Heard May 9.
    
    
      Decided July 7.
    
      Error to Oakland Circuit.
    This is an action of trespass brought by Isaac Applebone, a minor, by his next friend, Isaac Levi, against Samuel Swift and Henry Swift, to recover damages for personal injuries received by plaintiff from the dogs of defendants. The declaration contains three counts, the first and third of which are founded upon the common-law liability for such injuries, and the second is based upon the statute (§ 16J¡5, Comp. L.), which provides that if any dog “ shall assault, bite or otherwise injure any person while traveling in the highway or out of the inclosure of the owner or keeper of such dog, such owner or keeper shall be liable to the * * person injured in double the amount of damages sustained, etc., etc.,- and it shall not be necessary, in order to sustain an action, to prove that the owner or keeper knew that such dog was accustomed to do such damage or mischief; and upon the trial of any cause mentioned in this section,the plaintiff and defendant may be examined under oath touching the matter at issue, etc.; and if it shall appear to the satisfaction of the court by the evidence, that the defendant is justly liable for the damages complained of under the provisions of this act, the court shall render judgment against such defendant for double the amount of damages proved and costs of suit; but in no case shall the plaintiff recover more than five dollars costs.”
    The plea was the general issue, with notice that the defendants would prove that if the said dogs did attack or beset said plaintiff, they did so while in and upon the inclosure of said defendants, and while he was trespassing thereon.
    And upon the trial of said issue, the counsel for the said plaintiff, called said plaintiff, Isaac Applebone, and offered him as a witness in his own behalf; and it appearing to the court that said Applebone was a foreigner, and unable to speak or understand the English language, thereupon, counsel for plaintiff produced one Isaac Levi, the next friend of said plaintiff, and asked that said Levi might be sworn to interpret the testimony of said plaintiff,. Apple-bone. Counsel for the defendants objected to said Levi acting as such interpreter, for the reason that said Levi vras the next friend of said infant plaintiff, and a party to the record, and therefore incompetent to act as such interpreter. But said circuit judge overruled said objection, and counsel for defendants excepted. And said Isaac Levi was duly sworn, and acted as such interpreter.
    And thereupon said plaintiff was duly sworn (the oath being first duly administered to him by his said interpreter), and testified, through said interpreter, to the circumstances of the biting, and the extent of the injuries received.
    And thereupon one Edward Banner was called and sworn as a witness for plaintiff, and testified that he was a stage driver, and drove between Pontiac and Lapeer; that he heard of plaintiff being bitten; that he had seen at defendants’ a bull-dog and a shepherd dog, before this. And thereupon, counsel for plaintiff proposed to show the vicious character of these dogs by this witness; to which proposed proof counsel for defendants did then and there object, for the reason that the same was incompetent. And thereupon counsel for plaintiff stated to the court, in the presence and hearing of the jury, that they proposed to further show that these dogs were vicious, and had been for a long time, and the defendants knew of the vicious character of the dogs before the attack upon plaintiff. Thereupon, this witness testified that he heard of the injury to the plaintiff by these dogs, and that these dogs had often come out quite viciously at his stage team before he heard of the biting of the plaintiff, and once nearly threw his leaders out of the track; that they did this as much as a month before he heard'plaintiff was bitten; that he passed the defendants’ house every day, one day up and one day down, in the' forenoon about 10 o’clock and in the afternoon .about 3 o’clock, and that these dogs were accustomed to come out at him. '
    And thereupon, one Oren E. Bell was sworn as a witness for plaintiff, and testified that he lived in Oxford, and knew defendants, and where they reside, and that they have lived there about two years, and that they are both on the farm together. And thereupon, counsel for plaintiff proposed to prove by this witness, that, a few days after these dogs attacked the plaintiff, the witness was passing defendants’ house, in the highway, with his horse and buggy, and that these dogs came out and attacked witness’ horse and threw him down and injured him. To which proposed proof, counsel for defendants did then and there object, for the reason that the same was irrelevant and incompetent. But said circuit judge overruled said objection, and counsel for defendants excepted. And thereupon, this witness testified that a day or two after the attack on the plaintiff, he was passing defendants’ house, and the dog either made an attack on his horse or his dog. It was after dark, and the dog of the defendants, ran between his horse’s legs and threw him down and injured him. The dog came out ferociously, and Swift did all he could to call him back, but could not. And thereupon, counsel for plaintiff asked this witness the following question, to wit: “What was the character of these dogs in the neighborhood, for viciousness?” To which question, counsel for defendants did then and there object, for the reason that’ the same was irrelevant and incompetent. But said circuit judge overruled said objection, and. counsel for defendants excepted.
    And thereupon, this witness testified that the character of the dogs was bad; that the people at the hotel at' Oxford, the night plaintiff staid there, all said it was bad, but that he never heard any thing said about it until that night. And thereupon, counsel for plaintiff stated to the court, that as it appeared that the witness had no knowledge of the vicious, character of the dogs, in the neighborhood, until the talk at the hotel the' night the plaintiff staid there, they did not deem the testimony of this witness, as to the character of the dogs for viciousness, competent, and stated that he withdrew, the same and requested said circuit judge to so instruct the jury. And thereupon, said circuit judge stated that said testimony was incompetent and withdrew the same from the consideration of the jury.
    And thereupon counsel for defendants moved the. court to strike but the testimony of witness Banner, because there was no evidence that the defendants knew of the vicious character of the dogs, and that the same was therefore irrelevant and incompetent. But said circuit judge overruled said motion and refused to strike out said Banner’s testimony, and counsel for defendants excepted.
    And thereupon, counsel for defendant further moved the court to also strike out the testimony of said witness Bell, as to the attack of the dogs on him, for the reason that there was no evidence' of scienter on the part of defendants, and because the same was irrelevant and incompetent. But said circuit judge refused to strike out the testimony of said Bell, and counsel for defendants excepted.
    And said circuit judge charged the jury among other things, at the request of said plaintiff, as follows, viz:
    “ That if the jury shall find that the defendants were the owners or keepers of the dogs, and that said dogs did assault, bite and otherwise injure the plaintiff, while he was out of the inclosure of the defendants, and in the highway, they are liable in. this action to said plaintiff, under the second count of this declaration, for the injury which he thus received, and that the jury should assess his damages therefor, as single damages, and so specify the single damages by their verdict which they shall render.”
    “That as the said plaintiff waives his right to recover under the first and third counts of his declaration, and only claims to recover under his second count therein, you must return a verdict of not guilty, as to the said first and third counts of the declaration; and if you find the defendants guilty under the second count of the declaration, ■you will so say by your verdict, and assess and return the plaintiff’s damages thereunder, as single damages.”
    And the jury gave their verdict for the said plaintiff, upon the second count of his declaration, and assessed his damages under the same, at the sum of three hundred dollars, single damages, and found defendants not guilty irpon the first and third counts of said plaintiff’s declaration.
    Subsequently, on motion of plaintiff’s counsel, the court rendered judgment for double the amount of damages found by the jury.
    
      W. B. Jackson, for plaintiffs in error.
    
      Orofoot é Brewer, for defendant in error.
   Cooley, J.

Whatever objections may exist, in point of policy, to allowing the next friend of an infant plaintiff to be sworn as interpreter for a witness who does not speak the English language, we cannot say that in law it is erroneous. The old common-law rules which excluded parties and interested persons from being witnesses in civil cases, are now entirely done away with in this state; and though we think such a person ought not, except for very peculiar and satisfactory reasons, to be placed in the responsible position of interpreter, where the temptation to fraud might be great and the difficulty of detection greater, yet the question whether it shall be allowed in any particular case, must rest in the discretion of the judge presiding at the trial, who may be relied upon to call in a disinterested and impartial person for that office, wherever he shall find it practicable.

Nor do we think the court erred in refusing to strike out the testimony of the witnesses, Banner and Bell. Those Witnesses appear to have been examined to show that the defendants below had knowledge of the vicious character of the dogs which inflicted the injury; and as the plaintiff went to the jury, upon the second count only, and, under that count and the statute upon which it was framed, the liability of the defendants.did not depend upon the scienter, they insisted with some force that any testimony to establish it was irrelevant. But we think that in any case of such injury, the fact of knowledge, in the owner, of the vicious disposition of his dog may very properly go to the jury, as one to be taken into account by them in estimating the damages; and that one who knowingly subjects every person who passes his house to the z’isk of being torn by a savage beast, cannot demand, as a right, that the recklessness of his conduct shall be excluded from the jury when compensation to the injured party is being estimated. The jury should judge of such a case in view of all the circumstances-; and as the sense of injury suffered will depend very lai’gely upon the disposition shown by the owner of the dog to respect or disregard the rights of others, it is proper that the jury know what that disposition has been. Recklessness of conduct, or the want of due and reasonable care, is an important element in estimating the damages in most cases of tort, and we know of no reason why this case should be made an exception. It would' be absurd to hold that if defendants had instigated the dogs to commit the injury, the plaintiff’s recovery should be measured by the same standard that it would have been had the attack been made without their knowldge, by an animal never known to be vicious before; and if malicious conduct on their part should affect the damages, reckless conduct cannot be regarded as immaterial. The true course in such cases, we think, is to place all the facts before the jury, •and let their opinion of the proper compensation to be awarded, be formed of them all.

The defendants below, plaintiffs m error, have also argued in this court that the court below erred in not awarding judgment for them on the whole record, inasmuch as the verdict rendered in their favor on the first and third counts was inconsistent with any verdict against them on the second count, which was for the same cause of action as the others. Also, that the court below erred in not giving judgment in their favor for costs upon the issues found in their favor. It is sufficient to say of these supposed errors that there is nothing in the record to base them upon, as it does not appear that any motion for judgment in favor of defendants was made in the court below. But had such a motion been made, the court could not have held that the three counts of the declaration were for the same cause of action, for as a legal proposition they were not.

The course taken to double the damages, we think the proper one, and, as we find no error in the record, the judgment of the court below must be affirmed with costs.

The other Justices concurred.  