Fullerton v. Conan

DORAN, J.

This is an appeal from the judgment in an action for damages.

The complainant alleges that while plaintiff, a child of the age of five years, “was lawfully upon the premises consisting of defendants’ yard,” defendants’ dog bit plaintiff “on and about the mouth, inflicting severe pain, lacerations and wounds to said plaintiff’s face and flesh.” The trial court found for defendants.

It is contended by plaintiff on appeal that the “judgment for respondent based on the finding that appellant was a trespasser, is without support in the evidence and should be reversed.” In that connection appellant argues, “It is our contention that appellant having shown that the minor came upon respondent’s property under the invitation extended to her mother the burden was east upon respondent to show that although lawfully arriving upon the premises she subsequently did something which changed her status.”

The findings recite, ‘ ‘ The Court finds that the plaintiff had been instructed not to go into that portion of the said premises where the dog was maintained, namely, in the back yard of said premises; that notwithstanding said warning and instruction not to go in said portion of said premises, plaintiff did go therein without the permission or consent of the de

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fendant and was a trespasser therein, and that defendant was not guilty of any negligent, wilful or wanton act or conduct toward plaintiff.”

Chapter 503, Statutes 1931, page 1095, provides that, “The owner of any dog which shall bite any person while such person is . . . lawfully on or in a private place, including the property of the owner of such dog, shall be liable for . . . damages. . . . A person is lawfully upon the private property of such owner within the meaning of this act . . . when he is on such property upon the invitation, express or implied, of the owner thereof. ’ ’

Appellant bases the within action on the foregoing provision and in that connection argues, “In plain language, the statute provides that, if appellant came upon respondent’s premises lawfully and was bitten by his dog, respondent is liable. Because the statute is clear and unambiguous, there is no room for judicial construction.