Jordan v. Harvey

BARNARD, P. J. This is an action for damages. Richard Jordan, the minor plaintiff, was bitten by a Scotch Terrier dog. On the occasion in question Richard, who was 9 years old, was playing in a private garage with his brother Robert and two Jardine children. Fortunately, the boy was not seriously injured and the special damages proved, the cost of medical attention and supplies, amounted to about [136]$35. .There were several Scotch Terrier dogs in the neighborhood and the principal issue at the trial of the case was as to whether or not the dog that bit Richard was the one owned by the defendants. The court, sitting without a jury, found for the defendants, finding specifically that the dog owned by them did not bite the minor plaintiff. A motion for a new trial was denied and the plaintiffs have appealed from the judgment.

In a written opinion ordering judgment for the defendants and directing their counsel to prepare findings the court said, among other things, “It therefore resolves itself into simply a question of fact. The day after Plaintiff was bitten, the only eyewitness stated to Mrs. Harvey, one of the Defendants, that she was not sure ‘Sandy’ was the dog that had bitten Plaintiff. The testimony adduced by Defendants would preclude any possibility of the dog ‘Sandy’ having bitten Plaintiff.” Appellants’ first contention is that “the statement contained in the court’s opinion to the effect that there was only one eyewitness to the biting is contrary to the evidence.” It is argued that this statement in the opinion discloses that the trial judge, in reaching his conclusion, based it upon the erroneous belief that there was only one eyewitness, when in fact all four of the children who were playing in the garage saw what occurred.

The opinion of the court neither indicates that the trial judge took an erroneous view of the law applicable to the case (see Coakley v. Ajuria, 209 Oal. 745 [290 P. 33]), nor that any misconception of the facts was responsible for the decision. The court not only referred to the uncertainty of this one witness but pointed out the definite nature of the evidence for the respondents, including a comment on two other phases of the evidence, and then finally observed that the appellants had not met the burden of proof resting upon them.

While the court referred to but one of the eyewitnesses the testimony of all four of them discloses, in greater or less degree, an uncertainty with respect to the identification of this dog. Richard Jordan testified that it was dark at the time although there was a light in the garage, that he knew the Harveys had a “Scotty” as he had seen it in the road in front of their house, that this was the first time he