
    Schweikert v. Richards, et al.
    (Decided June 17, 1911.)
    Appeal from Campbell Circuit Court.
    1. 'Personal •Injuries — Finding of Jury — Evidence—Bite of Dog— In an action for damages resulting from the bite of a dog, evidence examined and held that the verdict of the jury in favor of the defendant is not flagrantly against the evidence,
    i. Same — Where Wife Had Nto Interest in Dog — 'Where husband and wife are alleged to be the owners of a dog that bit and injured plaintiff, and are jpintly sued, evidence of a statement made by the wife that the dog would bite that way; that it had bitten her niece, was properly withdrawn from the jury when it developed that the wife had no interest in the dog, and the court for that reason directed a verdict in her favor.
    'MATT 'MOCKR1E an SAMUEL BEUEIG for appellant.
    iM. A. BfURK'AMP for appellees.
   Opinion of the Court by

William Rogers Clay, Commissioner

— Affirming.

The plaintiff, Albert E. Schweikert, claiming that he was bitten by a dog belonging to the defendant, Walter J. Richards and Nellie Richards, his wife, and that the dog was dangerous and vicious, and' that this fact was known to the defendants, brought this action against them to recover damages.- There being a failure of proof as to Nellie Richards, the trial court directed a verdict in her favor. The case as to Walter J. Richards was submitted to the jury, which returned a verdict in his favor, and plaintiff appeals.

Plaintiff is a furnace setter and -sheet metal worker. At the time of his injuries he' was twenty-four years old. He was regularly employed at that time by a firm in Cincinnati. When injured he was suffering from an attack of la grippe and was temporarily in the employ of his father. His father then resided at 725 York street, in the city of Newport, Kentucky. The defendants lived at 727 York street, and their premises adjoined those of plaintiff’s father.

Between ten and eleven o’clock on the morning of October 29, 1909, plaintiff, who was at work on the second floor of his father’s shop, started downstairs for the purpose of getting some material with which to finish Ms task. At the foot of the stairway leading from the second to the first floor, there is a cement landing.- At tMs point there is a door leading to the alley and another door to the lower part of .the shop, and the place is dark. When plaintiff reached the foot of the stairs he claims he was seized by the leg or run into by something, which threw him off his balance. To steady himself he thrust out his right hand, and whatever it was that had attacked or run into him, bit Mm. He then found out it was a dog. Upon being bitten he shook the dog off. The dog immediately came back. From that time on the fight was fast and furious, and, to use plaintiff’s own phraseology, ‘c the dog attended strictly to business. ’ ’ At the same time plaintiff looked after his end of the fight and kept up a vigorous kicking. Neither seemed to lack courage. Notwithstanding the fact that the dog was being constantly kicked, he kept renewing the attack and biting at plaintiff’s legs. Finding that Ms kicks were making no perceptible impression upon the dog, plaintiff seized a piece of box lumber and began to Mt the dog with it. After several blows the dog was stunned, and plaintiff finally dispatched it by hitting it on the head •with a crow bar. The dog that bit plaintiff was a brown, smoothhaired dog of the dachshund variety, and during the fight “looked like he might have been about a foot high.” Upon cross-examination, plaintiff stated that it was so dark that neither he nor the dog knew the other was there until they were right on top of each other.

When the fight was over, plaintiff dressed his hand as best he could and then proceeded to the doctor’s. Not finding the physician he called upon, he returned to his own home. His wife then called in Dr. Anderson, who cauterized the wound and gave it antiseptic treatment. At the same time he recommended that the dog’s head be cut off and packed in ice, and then taken to Dr. A. P. Cole, of Cincinnati, Ohio, a physician who was engaged in administering the Pasteur treatment for the prevention of hydrophobia. The dog’s head was cut off and packed in ice. The next morning it was taken to Dr. Cole. The latter examined the dog’s brain and found it disclosed the presence of negri-bodies, thus proving, as he claimed, the existence of rabies. Plaintiff was then given the Pasteur anti-hydrophobia treatment for a period of twenty-eight days. This treatment consisted of injections around the abdomen, and, according to plaintiff, produced a pain on a par with the toothache; it also had the effect of making him drowsy, and he was wholly incapacitated from doing any work during the time he took the treatment. His finger that was bitten remained stiff for about six months. He paid Dr. Anderson ten dollars and Dr. Cole twenty-five dollars for examining the dog’s head and one hundred dollars for the Pasteur treatment.

The evidence further shows that the defendant, Walter J. Richards, was the owner of a dog of the dachshund breed which he kept upon his premises. On the morning' of October 29, 1909, a young man by the name of John Schreiber came to defendant’s home for the purpose of delivering groceries. Defendant’s dog was tied at the time upon the back of the premises. Schreiber was in the habit of playing with the dog. When he went to him on this occasion the dog bit his hand. He, however, acknowledges that it was his fault that the dog- bit him. He then went around to the front of defendant’s store, and defendant said that he would leave the damn dog loose; that he didn’t want a dog around the place that would do-that. The next morning the same witness claims that Mrs. Rickards said ske thought tkat dog would bite tkat way; tkat it bit ker niece tke same way. Sckreiber and another witness identified tke dog tkat bit plaintiff as tke dog belonging to defendant, Rickards,

The defendant, Walter Rickards, testified that ke kad ú small, yellow dog of tke dachshund variety, but tkat tke dog tkat bit plaintiff was not kis dog. The dog ke kad was of a gentle, docile and playful disposition — so muck so tkat a man who occupied tke second floor of tke premises where ke lived would frequently bring kis baby down and let kim play with tke dog. The only reason tke dog bit tke young boy Sckreiber was that tke latter persisted in teasing it whenever ke came to tke kouse. Aside from tkis incident, no one ever complained of tke dog’s disposition. He also testified tkat ke never turned tke dog loose until about dinner time, and tkat he was not present when Sckreiber was bit and did not know anything about it until ke returned to tke kouse. He also stated tkat Mrs. Rickards kad no interest whatever in tke dog.

Several witnesses, including tke man whose baby played witk tke dog that Rickards owned, testified to its good traits.

> As there was no evidence tending to show tkat Mrs. Rickards kad any interest in tke dog tkat ker husband owned, the trial court properly directed a verdict in ker favor; and, upon doing tkis, ke properly withdrew from tke consideration of tke jury the statement tkat Sckreiber alleges ske made with reference to tke dog biting ker niece. Being no longer a party to tke action, an admission by ker was not admissible.

As tke instructions given by tke trial court were prepared by plaintiff’s counsel, plaintiff can not complain of them.

Plaintiff’s chief complaint is tkat tke verdict is flagrantly against tke evidence. Tkat plaintiff was bitten by a dog, there can be no doubt; but, whether or not tke dog tkat bit kim belonged to the defendant is another question. It is earnestly contended tkat, because tke dog tkat bit plaintiff was recognized by two witnesses as defendant’s dog, and tke latter’s dog never came back, tkis is sufficient to overcome tke evidence to tke effect tkat it was not defendant’s dog tkat bit plaintiff. In tkis connection, however, it must be remembered tkat tke dog tkat bit plaintiff kad been beheaded, and it does not appear that it had upon its body any marks that would differentiate it from any other dogs of the same breed. Furthermore, plaintiff claims that the dog that bit bim was a brown dog. The defendant’s dog is always referred to in the evidence as a yellow dog. The fact that defendant’s dog never came back is not conclusive of the question. The proof shows that the dog had wandered away once before, and was found in possession of strangers. The death of a dog is never presumed because he wanders away and never comes back; and, as counsel for defendant suggests, defendant is yet á young ma-n and may live to see his dog return.

In. view of these facts, and the further fact that defendant testified that the dog that was beheaded was not his dog, and that he did not turn his dog loose until dinner time, which was long after plaintiff claims to have been-bitten, we can not disturb the finding of the jury on the ground that it is flagrantly against the evidence.

Judgment affirmed.

Judge Lassing dissents.  