
    Andrew Laguttuta, an Infant, by Joseph Laguttuta, his Guardian ad Litem, Appellant, v. George E. Chisolm and Robert Wilson, Respondents.
    
      Injury from the bite of a dog — evidence of liability therefor.
    
    In an action to recover damages for injuries sustained by the plaintiff, in consequence of his being bitten by a watch dog owned and maintained by the -defendant Wilson upon certain premises in the city of New York, the defendant Wilson testified that the defendant Chisolm bought the premises and built .•a stable thereon and made an arrangement with him by which he, Wilson, was ■to rent stalls in the stables and the yard for trucks, and after deducting his commissions was to pay the balance to Chisolm.
    •Chisolm testified that he leased the premises to Wilson, who agreed to pay as rent therefor a percentage of the gross amount received for the use of the stable.
    Zt further appeared that on the day in question the plaintiff’s father, who kept his horses and truck upon the premises, sent his driver to get them, and as the 'driver did not speak English he directed the plaintiff, who was about nine years of age, to act as interpreter; that while the boy was waiting in the yard the dog, which was usually kept chained in the daytime, attacked him and severely injured him.
    There was evidence sufficient to justify the jury in finding that Wilson had knowledge that the dog was a dangerous animal, but it did not appear that Chisolm had any relation or connection with the keeping of the dog or any knowledge that it was being harbored upon the premises.
    Upon the trial the court directed a verdict in favor of both the defendants.
    
      Held, that the judgment should be reversed as against the defendant Wilson.
    Van Brunt, P. J., dissented.
    That it should be affirmed as against the defendant Chisolm.
    Patterson and Hatch, JJ., dissented.
    Appeal by the plaintiff, Andrew Laguttuta, an infant, by Joseph Laguttuta, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 15th day of March, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term, and also from an order entered in said clerk’s office on the 1st day of April, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      E. B. La Fetra, for the appellant.
    
      John M. Bowers, for the respondent Chisolm.
    
      Cha/rles L. Hoffman, for the respondent Wilson.
   Ingraham, J.:

The action was brought to recover for the damages sustained by the plaintiff by reason of the bite of a dog owned by the defendant Wilson. There was no motion for a nonsuit at the end of the plaintiff’s case, but after the evidence was all in, the defendants moved for the direction of a verdict, which motion was granted as to both of the defendants. It seems that the defendant Wilson was in possession of certain premises in East Eleventh street, in the city of Hew York, and owned and maintained upon the premises a watch dog, usually kept chained in the daytime. Upon these premises there was a stable, and Wilson rented stalls in this stable and used the yard for the storage of trucks. He had entire charge of the premises, renting the stalls for horses and the yard for'trucks, and after deducting a percentage of the receipts, paid the balance to the defendant Chisolm who was the owner of the premises, as-compensation for the nse of the premises for the purposes mentioned. This dog in question was owned and kept upon the premises by Wilson for his own purposes, as there is no evidence that Chisolm-, had any knowledge that the dog was there, or had anything to do-with it. There was evidence to show that the dog had bitten a-boy prior to the occurrence in question of which Wilson had notice.

I think that the question as to Wilson’s liability for the injury inflicted upon the plaintiff was one for the jury. The plaintiff’s-father kept his horses and truck upon the premises and paid Wilson therefor. At the time in question he sent his driver to get this-team and truck, and as the driver did not speak English he sent the plaintiff, a boy about nine years of age, to act as interpreter. The hoy was thus lawfully upon the premises, and while waiting in the yard for the driver to bring the horses from the stable was-attacked by the dog and severely injured. It was said that the boy had been warned before of the character of the dog and was told not to come upon the premises, but the boy was upon the premises in connection with the lawful business carried on there, acting for his father who, under contract with Wilson, had the right to go-there, and the boy had no knowledge that at the time of the occurrence the dog was-unchained, and did nothing to provoke the dog. There is nothing to show that the plaintiff voluntarily assumed the risk of being bitten by this dog or that any act of his contributed to the injury. There was sufficient to justify the jury in finding-that Wilson had knowledge that this dog was a dangerous animal. As was said in Brice v. Bauer (108 N. Y. 432), “ the very purpose-for which the defendant kept him (the dog) charges him with, knowledge of his character, and he is, therefore, chargeable with, negligently keeping him, although it had not appeared that he had actually bitten another person before he bit the plaintiff; ” and the-court cited with approval what was said in Buckley v. Leonard (4 Den. 500) that aside from proof that the defendant had notice of the dog’s disposition, the fact that he usually in the daytime kept him confined, and in the night kept him in his store, is strong evidence that he was fully aware that the safety of his neighbors would be endangered by allowing him to be at large.” It would seem,. therefore, that the judgment directing a verdict in favor of the defendant Wilson should be reversed.

A different question is presented as to the liability of the defendant Chisolm. The relation between Chisolm and Wilson is not very-clear from the plaintiff’s evidence. Wilson was called by the plaintiff and testified that prior to the year 1898 he was in possession of’ the premises under an arrangement that he had with one Cruikshank who was then its owner; that when he first went there lie went as a watchman at twenty dollars a month, and that continued until a malthouse, which was upon the premises, was torn down ; that after the malthouse was torn down there was no building upon the premises ; that Wilson then made an arrangement with Cruikshank by which he (Wilson) was to use the property for storage,. Wilson to receive thirty per cent of the proceeds ; that this arrangement continued until Chisolm bought the property, which seems to' have been about the 29th of July, 1898 ; that after Chisolm bought the property he saw Wilson and the arrangement that had theretofore existed was continued, Wilson remaining in possession of the property and renting it out for storage purposes and accounting to Chisolm for the amount that he collected, deducting thirty per cent for his services ; that sometime after Chisolm became the owner of’ the property he built a stable thereon and an arrangement was there made by which Wilson was to do his best to fill the stable and store trucks in the yard, keep an account of the receipts and take out his. commissions and pay Chisolm the difference, and that that was the arrangement upon which Wilson remained there ; that at the end of each month he rendered an account to Chisolm and paid him the amount due ; that Wilson managed the property entirely, made the bargains with the people, did the best he could, and searched for business, and Chisolm did nothing in regard to the business, except that at the end of each month he received his proportion of the amount realized by Wilson for the use of the premises. Wilson further testified that he owned the dog and kept him upon the premises for his own purposes. Chisolm was examined on the part of the defendants and testified that he leased the premises to Wilson who agreed to pay as rent therefor a percentage of the gross amount received for the use of the stable. It seems to me quite evident that, accepting either version of the relation that existed, Chisolm was not responsible for any injury that might be caused by this dog. The dog did not belong to him, and he had nothing to do with maintaining it upon the premises. It was not kept there to protect his property, or any interest that he had therein. His sole interest in the property was that of owner, and he was only interested in receiving a portion of the rents obtained therefrom. The protection of this piece of land certainly did not require the presence of a sav„ age dog, and Wilson did not occupy the position of a servant or employee who was intrusted by Chisolm with the care of this dog. Thus, Chisolm never owned the dog ; had no knowledge that it -was kept upon his premises; authorized no one to keep a dog there; had no relation or connection with the keeping of the dog, or any knowledge that a dangerous dog was maintained upon the premises. The foundation of this action is negligence, and no recovery has been sustained in any of the cases to which our attention has been called without proof that the vicious animal was owned or maintained by the person liable for his acts.

The case of Marsh v. Hand (120 N. Y. 315) seems to be directly in point. That case was to recover damages for an injury caused by a buck sheep which made an attack on the plaintiff, and the court held that the evidence was sufficient to charge the owner of the sheep with liability for the damage sustained by the plaintiff. It appeared that the defendant Hand was the owner of the farm and certain stock; that he surrendered the entire control of the stock to one Cumber, who undertook to take care of it, and that Cumber as well as Hand had an interest in the stock, but the ram which did the injury complained of was not left upon the farm by the defendant Hand, or put there by him. It was purchased by Cumber after he went into occupancy, of which fact Hand had no notice.

It was contended that the trespass and injury was the result of the negligence of Cumber, and for his negligence Hand was liable; but it was held that that proposition could not be supported on the ground that he was their servant; that no such relation arose from the contract. The court say : “ Here Cumber, by the contract, undertook to occupy and work the farm and manage the stock left there, in his own way, with a view to results and without any contribution of the defendants Hand to the service, with the performance of which they had nothing to do. The practical effect of the contract was that the executors should have a share of the products by way of compensation for the use of the property, and that Cumber was entitled to the other share as compensation for his labor in performing the contract. Ho negligence of the latter in the performance of the work to the prejudice of third parties could charge the Hands with liability.” This precise relation is presented in this case. Wilson undertook to manage this property and procure as much as possible for it, the proportion paid to Chisolm being the compensation that he was to receive for the use of his property, and for the negligence of Wilson in maintaining upon the premises a vicious dog, Chisolm was not responsible.

The plaintiff claims that the testimony of Wilson as to his relation with Chisolm was not entitled to credit, but Wilson was called as a witness by the plaintiff, and assuming that his testimony was not to be believed, we have no evidence as to Chisolm’s relation to the property, except his own, which was that he leased the property to Wilson. The fact that Wilson’s testimony could be discredited would not be evidence to justify a finding that Chisolm was the owner of, or maintained, this dog. To entitle the plaintiff to recover against Chisolm he had the burden of proving that Chisolm was responsible for the acts of the dog. Either with or without Wilson’s testimony there is not a particle of evidence that would justify a finding of Chisolm’s liability.

It follows that a direction of a verdict in favor of Chisolm was correct and should be affirmed; that the judgment for the defendant Wilson should be reversed, with costs to the plaintiff against Wilson to abide the event and the judgment in favor of Chisolm affirmed, with costs against the plaintiff.

Laughlin, J., concurred; Van Brunt, P. J., concurred as to defendant Chisolm, and dissented as to defendant Wilson ; Patterson and Hatch, JJ., dissented as to defendant Chisolm.

Hatch, J., (dissenting):

This action was brought to recover damages for personal injuries alleged to have been sustained by Andrew Lagnttuta, an infant nine years of age, from the bite of a vicious dog.

It is averred in the complaint as a cause of action that at the times therein mentioned the defendant Chisolm carried on, or caused to be carried on, at the premises therein described a livery and boarding stable for the boarding of horses and storage 'of vehicles that the defendant Wilson was employed by said Chisolm as manager of said stable "and therein was, at all the times mentioned in the complaint, the agent, servant and representative of said defendant Chisolm; that the defendant Chisolm was the owner of and the-defendants both maintained, or caused to be maintained, at and. about said premises, a dog of a ferocious, vicious, mischievous and dangerous disposition and accustomed to attack and bite people, of which the defendants had knowledge, notwithstanding which they wrongfully kept and maintained at large, in and about the premises, and adjacent land used by defendants in said business, said dangerous animal, which they neglected and omitted, contrary to their duty, to have and keep properly confined and chained, thereby creating and maintaining a nuisance; that while lawfully upon the-premises so occupied by the defendants this dog, without any cause- or provocation, suddenly and viciously attacked the plaintiff and severely bit and injured him, scaring and disfiguring him for life, and inflicting other permanent injuries, for which damage is claimed in the sum of $10,000.

The defendant Chisolm by his answer alleges that he leased the-premises to Wilson ; denies the ownership and maintenance or harboring of the dog, knowledge of its vicious propensities and ajl the-material allegations showing liability on his part. The defendant-Wilson also denies all the material allegations of the complaint- tending to establish liability on his part, and both defendants aver that, the plaintiff’s injuries were caused by his own negligence or by the-negligence of third persons over whom the defendants had no control.

At the close of the evidence the court dismissed the complaint as-to both defendants, to which counsel for the plaintiff excepted, and asked to go to the jury upon various questions of fact, viz., as to the-viciousness of the dog; as to whether or not Wilson was in the-employ of Chisolm ; as to whether there was or was not a lease from Chisolm to Wilson; as to whether or not there was warning given to the plaintiff of the character of the dog, such as would defeat his-action ; on the question of contributory negligence, and on the question of damages. These motions were denied, to which ruling counsel for plaintiff took an exception. Motion was then made in behalf of the plaintiff for a new trial, which was also denied, and from the judgment entered and from the order denying the motion for a new trial this appeal is taken.

It is clear beyond dispute that the question of Wilson’s liability ■for the injuries inflicted by the dog presented a question of fact for the jury. The evidence was abundant to show that Wilson was the owner of the dog; that he kept the dog upon the premises, and that the dog had, prior to the time when he bit the plaintiff, bitten one or more other persons. As to Wilson, therefore, there was every element in the case from which the jury would have been authorized to find that he was responsible for injuries inflicted by this dog, unless he was relieved therefrom by the misconduct of the person who received the injury. As to the defendant Chisolm the case is somewhat different. It was conceded that he was the owner of the premises, but the claim was made that he had leased them to Wilson, and that Wilson had sole charge of the premises as lessee, and that Chisolm was not connected therewith, and had no control, either over Wilson or the premises at the time when the dog was kept thereon and when he bit the plaintiff. If this were conclusively •established then it follows that Chisolm was relieved from liability for the act of the dog. The case comes, therefore, to rest in the main upon the question as to whether Wilson was the mere agent .and servant of Chisolm or whether he was the lessee having sole control of the premises. It appears that Chisolm purchased the premises, consisting of a stable, at a foreclosure sale. It is not •claimed that Chisolm ever executed any written lease of the premises to Wilson. The evidence upon the part of the plaintiff tended to establish that after the purchase Wilson took charge of the stable finder an arrangement with Chisolm by which he was to rent stable room to persons desiring such accommodation, collect the moneys therefor and pay the same over to Chisolm, less a certain percentage which he retained as his compensation. At first Wilson was authorized to retain thirty cents on the dollar as his commission, as he •expressed it, and subsequently Chisolm refused to allow that amount and reduced'it. to fifteen cents on the dollar. During the whole period Wilson collected the money and paid it over to Chisolm under this arrangement; and these were the terms _ under which Wilson had the custody and control of the premises in question. It is quite evident that upon this testimony the jury would have been authorized to find that Wilson was a mere agent of Chisolm to rent the premises to persons for stabling accommodations, collect the rents and pay them over to Chisolm, and that, in fact, the relation of landlord and tenant did not exist between these parties. If the jury had found such to be the fact, as they might upon the testimony, then it would follow that Wilson’s possession of the property was the possession of Chisolm, and that the former was simply his agent.' Under such circumstances Chisolm would be chargeable with knowledge that the dog was harbored upon the premises and also with knowledge of his vicious propensities if it was found that Wilson possessed such knowledge or that the dog had bitten other people. (Quilty v. Battie, 135 N. Y. 201; Keenan v. Gutta Percha Mfg. Co., 46 Hun, 544; Muller v. McKesson, 73 N. Y. 195.)

It is quite evident that Wilson had notice, at least the jury might so find, that the dog had bitten one or more persons prior to his biting the plaintiff', and he had caused to be put upon the premises a notice to beware of the dog.

If Wilson was Chisolm’s agent his knowledge became that of his principal, and with that relation established as the jury might find it under the evidence, every element would be present charging Chisolm with liability for the injury which the dog inflicted. I am of opinion, therefore, that the plaintiff made a case entitling him to go to the jury as to the liability of both defendants, and upon the questions upon which he requested to go to the jury.

The plaintiff was not chargeable with contributory negligence as matter of law. That also became a question for the jury. (Zwack v. N. Y., L. E. & W. R. R. Co., 160 N. Y. 362; Stone v. Dry Dock, etc., R. R. Co., 115 id. 104.) If the negligence of the parents could be imputed to the child, it was still a question of fact, under all the circumstances of the case, as the jury might well find that in committing the boy to the custody of the driver they were not negligent.

It follows that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Patterson, J., concurred.

Van Brunt, P. J.:

I dissent. I do not think that any case was made out against either defendant.

As to defendant Chisolm, judgment and order affirmed, with costs.

As to defendant Wilson, judgment and order reversed, new trial ordered, costs to appellant to abide event.  