Green v. Doyle , 21 Ill. App. 205 ( 1886 )

Congee, J.

In the summer of 1885, appellee Doyle pastured his mare and colt in the inclosed and private pasture of one Piggott, where stock of other people were also kept and pastured.

Appellants, Green and wife, accompanied by a small dog, unlawfully climbed over the fence and entered the pasture.

From some cause the horses became frightened and started to run, when the dog of appellants chased and worried the colt of appellee so much that in running over some rough and broken ground it fell, and received such injuries therefrom that it afterward died.

A declaration in case was filed setting forth at large the foregoing facts, to which a demurrer was filed, and upon the court overruling the demurrer appellants chose to abide by it, whereupon a jury was called and appellee’s damages assessed at 8160.50, for which judgment was rendered.

The principal objection taken to the declaration is that there is no averment that appellants had previous notice of a vicious disposition in their dog.

The answer of appellee is that appellants and their dog were at the time trespassers, and unlawfully in the pasture where appellee’s colt was, and the injury was the direct and natural consequence of such trespass; to which appellants urge in reply that such trespass is a wrong done only to the one in possession of the close, and of which appellee can not avail himself as the foundation of action.

So far as the trespass of appellants upon the land of Piggott was an invasion of the rights of those in possession, and an injury to the close, it would clearly be no concern of appellee; but if such unlawful entry was the direct and proximate cause of injury to appellee, we see no good reason why it may not afford a ground of action to him.

The vital question is, whether the dog was by the voluntary act of appellants wrongfully and illegally in the place where the injury was inflicted; if so, they would be liable for any injury done by the dog, although appellants had no previous knowledge that he was vicious. Goodman v. Gay, 15 Pa. St. 188; Dicker v. Goodman, 44 Me. 322; 1 Addison on Torts Sec. 381; 1 Chitty’s Pl., side paging, 82.

We think the demurrer was properly overruled. The declaration was substantially good, not in trespass to personal property, or to real estate, but in an action on the case, which was the proper form of action; hence the authorities cited by appellants upon the question of trespass to real estate have no application. Some of the questions asked the witnesses upon the assessment of damages are not entirely free from error, but we do not think they worked any injury to appellants, and we do not therefore notice them in detail.

Upon the question of the value of the colt, we think the evidence was sufficient to justify the finding of the jury, and the judgment of the Circuit Court will therefore be affirmed.

Affirmed.