Sawrey v. Grant ( 1928 )

This action comes into this court on a petition in error to the common pleas court of Cuyahoga county.

In the common pleas court, the plaintiff, Donald J. Grant, brought this suit by his father as next friend, for damages resulting to him from a dog bite, which dog, it was alleged, was harbored by the defendants below, who were husband and wife. A judgment for $500 was obtained against the defendants, and error was prosecuted from that judgment to this court. No claim of error in the judgment is made by the husband, William F. Sawrey, as against him, but it is claimed that, inasmuch as these two defendants below were husband and wife, and the evidence tends to show that William F. Sawrey was the owner of the dog, plaintiff below could not get a judgment against both the owner and the harborer, even though the evidence showed that Mrs. Lucy Sawrey harbored the dog. In other words, it is claimed that the judgment could not be rendered against both the owner and the harborer. The statute (General Code, Section 5838) says "or." Whether this is sound reasoning or not, which the writer of this opinion doubts, that was not the case that was made on the pleadings. Two or more persons may harbor a dog; and I apprehend the statute was framed the way it was so that one who harbored the dog, even though he was not the owner, might be responsible whether the owner was or not.

Now the record in this case shows that the defendants lived together, and that the dog was, you might say, an inmate of the household. He was fed and taken care of and harbored as much by the wife as he was by the husband. It is admitted in open court that there is a plain attempt to cast liability upon the husband to let the wife, who is financially responsible, escape; the husband's interest in the property having been transferred to the wife after this injury occurred, but before the suit was brought. He is seeking to have the liability, if any, placed upon his shoulders, and, if this is accomplished, inasmuch as he has no property, both will escape responsibility entirely. While that is not very material in this case, it still bears upon the question whether or not the wife did harbor the dog.

There is no question, under the statute under which this suit was brought, that whoever owns or harbors a dog is liable to any human being who is injured by the dog. This statute was passed so as to obviate the law that was laid down in the case of Hayes v.Smith, 62 Ohio St. 161, 56 N.E. 879. That case held that the owner or harborer of a dog had to have knowledge of the dog's propensities to savageness, for the cases prior to passage of the statute laid down the rule that "a dog was entitled to one bite," and so, to obviate the necessity and difficulty of proving the viciousness of the dog, and bringing knowledge of such viciousness home to the owner or harborer, this statute was passed so as to make the owner or harborer liable in all events, and thereafter all that had to be done to fix liability was to prove the injury and the ownership or the harboring of the dog. The Smith case, supra, lays down the doctrine that two or more persons may harbor a dog, and that the recovery may be joint or several, and the Smith case, therefore, although cited to establish the opposite doctrine, is an authority in point sustaining the judgment in this case.

Now here was a little boy, 5 or 6 years old, who was severely bitten by the dog that was owned by one or the other of these two persons, and was on the premises and an inmate of the home which was occupied by them both, and which was harbored by both, and I do not think the doctrine is sound that, if you get a judgment against the owner, you cannot get a judgment against the harborer of the dog. If necessary, the word "or" will be read "and," and there is good authority for this reading, but, as already stated, this suit was planted upon the theory that both of these partiesharbored this dog, and the proof surely establishes that. The judgment was so small under the circumstances that one wonders why one or the other did not pay it, and then it would not be very material who owned the dog, or who harbored it. It stands out clearly in the record that the boy was injured; and the judgment is very small; and the evidence is clear that both of these persons harbored the dog. There being no error in the record, the judgment will be affirmed.

Judgment affirmed.

SULLIVAN, P.J., and LEVINE, J., concur.