Dobrin v. Stebbins (1970) Gen. No. 53188
Appellate Court of Illinois, First District, Fourth Division.
March 11, 1970
Supplemental Opinion on Denial of Rehearing May 13, 1970.
The facts of the case are these: (Evidentiary Facts) “In a non-jury trial, plaintiff recovered a judgment against defendant for personal injuries he suffered when he was bitten by defendant’s dog. Although plaintiff, who is the appellee in these proceedings has not filed a brief, we will review this appeal on the merits (Daley v. Jack’s Tivoli Liquor Lounge, Inc., Ill.App., 254 N.E.2d 814). The facts are not in dispute. On July 16, 1964 defendant was the owner of a toy German Shepherd. He chained it to a pipe so that the dog was confined within defendant’s property at 6225 West 79th Street in the City of Chicago. Plaintiff, then 17 years of age, was selling magazines. There was no sign or posted notice on defendant’s property warning salesmen of others to keep off. Plaintiff went to defendant’s home. He walked up a dirt path that led from the sidewalk. When plaintiff was within five or ten feet of the door, defendant’s dog jumped on plaintiff, bit him in the abdomen and on the thigh. After getting away, plaintiff was taken to a nearby clinic where he received treatment for his injuries. Later in the day he visited his family doctor who replaced the bandages and gave give him a tetanus shot. Pain from the dog bites lasted three or four days. Plaintiff’s doctor submitted a bill which was paid. Plaintiff filed suit against defendant and invoked what is colloquially the ‘Dog Bite Statute,’ Ill. Rev. Stat. 1963, ch. 8, sec. 12d which provides: ‘Dogs attacking or injuring person—Liability of owner. If a dog, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of the dog is liable in damages to the full amount of the injury sustained. The term ‘owner’ includes any person harboring or keeping a dog. The term ‘dog’ includes both male and female of the canine species.’ After hearing evidence, the trial judge awarded plaintiff damages in the sum of $750.00. Defendant appeals. He contends that plaintiff was a trespasser when he entered defendant’s property; therefore no judgment could be recovered under the statute. In the alternative defendant contends that the damages award was excessive.” (Procedural Facts) “Action against property owner by magazine salesman to recover for injuries sustained when bitten by owner’s dog. The Circuit Court, Cook County, William S. White, J., entered judgment for plaintiff, and defendant appealed. The Appellate Court, Leighton, J., held that the 17-year-old magazine salesman, who entered premises by dirt path that led from sidewalk, and who had approached within 5 or 10 feet of door when he was attacked and butten by owner’s dog, was a licensee rather than a trespasser and was entitled to recover, under dogbite statute, on showing that owner had posted no signs warning salesman or other to keep off premises and that salesman was peaceably conducting himself and had not provoked attack. Affirmed.
The issues in this case are these: 1. Was the magazine salesman a trespasser or a licensee on the defendant’s land? 2. Was the compensation awarded reasonable?
The holding in this case are these: 1. The court found that the salesman was a licensee and not a trespasser, also that salesman was peaceably conducting himself in a place where he was lawfully allowed to be. 2. The court found that the trial judge awarded the plaintiff reasonable and fair compensation.
The majority opinion (rationale) in this case was written by Justice Leighton it states in part: “A trespasser is one who does an unlawful act or a lawful act in an unlawful manner to the injury of the person or property of another (87 C.J.S. Trespass ss.1; see People v. Goduto, 21 Ill.2d 605, 174 N.E.2d 385). By this definition, plaintiff was not a trespasser on defendant’s land when he went there during the ordinary hours of the day to solicit magazine subscriptions. An owner of property who provides a path or walk from the public way to his door, without some indication (sign, posting of notice or words) warning away those who seek lawful business with him extends a license to use the path of walk during the ordinary hours of the day. Persons who thus make us of the path or walk are licensees (Restatement, Second, Torts, sec. 332, Comment b; Stacy v. Shapiro, 212 App. Div. 723, 209 N.Y.S. 305 (1925); Reuter v. Kenmore Building Co., 153 Misc. 646, 276 N.Y.S. 545 (1934). Our decision in Messa v. Sullivan, 61 Ill. App.2d 386, 209 N.E.2d 872 supports this view. Therefore, plaintiff was a licensee on defendant’s land when he was bitten by defendant’s dog. He was in a ‘place where he may lawfully be. ***’ within the meaning of (Ill. Rev. Stat. 1963, ch. 8, sec. 12d.). This being so, proof that plaintiff while peaceably conducing himself and without provocation, was injured by defendant’s dog justified entry of judgment in favor of plaintiff and against defendant (Beckert v. Risberg, 50 Ill. App. 2d 100, 199 N.E.2d 811; Bailey v. Bly, 87 Ill. App.2d 259, 231 N.E.2d 8). The damages the trial judge awarded plaintiff were within the limits of fair and reasonable compensation (Johnson v. Eckberg, 94 Ill. App. 634; Sesterhenn v. Saxe, 88 Ill. App. 2d 2, 232 N.E.2d 277). Judgment is affirmed.”
Justice Stamos, P. and Justice Drucker, concur in this opinion (dicta).
Justice Leighton, wrote a supplemental opinion in this case stating in part:”Defendant petitions for rehearing on the ground that when plaintiff came upon defendant’s property, he saw the dog that bit him. Defendant argues that the best warning a property owner can give to those who may come upon his land is his dog chained, in plain view and standing guard. Defendant contends that presence of his dog in this way was constructive notice to the plaintiff that he could enter defendant’s property only at his peril. We agree that a dog chained to guard its owner’s property where it can be seen, is notice that entry on the land is forbidden. However, the record in this case does not support defendant’s contention. Both plaintiff and the defendant testified that there were bushes on either side of the door to defendant’s home. Plaintiff testified that he never saw defendant’s dog before it bit him because it ‘must have come out of the bushes **.’ In other words, defendant’s dog was not where plaintiff could see it. The petition for rehearing is denied. Petition for rehearing denied.
Stamos, P. J., and Drucker, J., concur in this supplemental opinion as well.
The judgment in this case is similar to that of the other three cases I have been asked to brief by the Law School. My first briefing was Nelson v. Lewis (1976) in which a little girl fell onto a dog’s tail. In that Illinois case, the child ‘provoked’ the dog under the statute and therefore the owner of the animal was not liable for injuries caused by the animal. The Second briefing was Messa v. Sullivan in which a person wishing to conduct a business transaction, accidently entered an area guarded by an attack dog. The dog attacked the woman, and due to no provocation by the victim, the dog’s owners were liable for her injuries. In this case, my third briefing, the victim entered a property through a path, where no signs were present to alert him of the danger of an animal that might attack him. In this case the dog’s owner was also liable for the injuries to the victim, because the owner didn’t take appropriate action to notify ‘licensee’s’ of the potential danger from his animal(s).
Work’s Cited: 259 North Eastern Reporter, 2d Series Pg. 405-408, Dorbin v. Stebbins, No. 53188.
Legal Brief by: David A.W. Hittle
July 2, 2013