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Mcevoy v. Brown

MAY 21, 1958.

MARY MCEVOY, PLAINTIFF-APPELLEE,

v.

ROBERT S. BROWN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Macon county; the Hon. MARTIN E. MORTHLAND, Judge, presiding. Affirmed.

JUDGE REYNOLDS DELIVERED THE OPINION OF THE COURT.

The plaintiff, Mary McEvoy, seventy-two years of age, sued her son-in-law Robert S. Brown, claiming she was attacked or injured by the dog of the defendant, by reason of its running into or against her in such a manner that she fell or was knocked from her back steps and broke her ankle. The dog belonged to the defendant son-in-law, and had been brought to the home of the plaintiff by her two grandsons, children of the defendant. At that time the plaintiff was living in her own home at 890 West William Street in Decatur, Illinois. The defendant, at the time of the injury to the plaintiff, lived at 2 Millikin Place, in Decatur. The little boys brought the dog which was a puppy about 3 months old over to their grandmother's home and tied him in the back yard. There had been some prior arrangement between the plaintiff and her daughter that she would care for the boys that afternoon and the plaintiff first saw the dog some time after the boys got there, when she found him tied up in the back yard. She thought he was hungry and went back into the house to get some steak bones for him. She untied him before she fed him and because the dog appeared to be still hungry she started back into the house to get him more food. The plaintiff is not clear whether or not she was on the back porch or still on the steps when the puppy ran between her legs and she fell. She is positive in her testimony that he ran between her legs. She had a visitor with her at the time, a Mrs. Whitley, but Mrs. Whitley did not see the dog when he ran into or against the plaintiff. The only witness as to the actual running into or against the plaintiff by the dog is the plaintiff herself. The defendant was not in the city at the time of the accident, and knew nothing about it. There does not seem to be any dispute as to the extent of the injury suffered by the plaintiff and the amount of her expenses growing out of the injury. The questions before this court are the legal questions raised by the appeal, and the question raised in the appeal as to what actually caused the plaintiff to fall, this being a question of fact, and since the plaintiff is the only witness as to this, an interpretation of her various statements as to what happened must be made. The plaintiff in her testimony uses several expressions as to the cause. In one place in her testimony, she stated the dog "ran up from behind her and went between her legs and threw her into the bushes on the east side." At other points she testified that the dog ran between her legs and tipped her into the bushes; that it was the pressure of the dog that made her fall; that she fell when he got between her legs and she lost her balance; that he went between her legs and threw her into the bushes; that he evidently bumped against her when he went between her legs; that she fell because the dog tripped her, and then at another point she answered: "What I mean is, I guess I lost my balance when the dog tripped me." And at another point she said: "I remember distinctly feeling a twist of his body as he went between my legs and that is what caused me to fall."

Summing up this testimony of the plaintiff and her various expressions of what actually caused her fall, it seems definite that the act of the dog running between the plaintiff's legs, was the cause of her falling. Whether she was tipped, tripped, thrown, bumped, or was caused to lose her balance by reason of the dog running between her legs, is immaterial. The plaintiff did not fall as the result of any act or omission on her part, but because the dog ran between her legs, thereby causing her to fall, and this being established without question, any play on words or inquiry into the semantics is unnecessary.

The suit was brought under the provisions of Chapter 8, Section 12d of Illinois Revised Statutes (1953). The statute in question is as follows:

"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 person so attacked or injured 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."

The plaintiff contended and so claimed in her complaint, (par. 2 of complaint) that she was attacked or injured by said dog by reason of its running upon or against her in such manner as to knock the plaintiff from her steps and thereby throwing her with great force and violence to and upon the ground. And the plaintiff further contends that the attack or injury suffered by the plaintiff was without provocation on her part.

The only witnesses were the plaintiff, the defendant, who admitted ownership of the dog, but knew nothing of the dog being at the home of the plaintiff or what happened there, the defendant's wife, the daughter of the plaintiff, who was not present and knew nothing as to the actual occurrence, Mrs. Mabel Whitley, who was present but did not see the actual occurrence since she was looking another way, and Dr. Sterling G. Parker, who treated the plaintiff.

The cause was tried before a jury, and the jury returned a verdict for the plaintiff assessing her damages at $8,000. The jury also answered a special interrogatory finding that the plaintiff was not harboring or keeping the dog in question at and immediately prior to the time of the injury of which she complained.

From that verdict and judgment entered thereon, the defendant appeals to this court. The appeal raises five points as grounds for his appeal. 1. That the suit must be based upon Section 12d of Chapter 8, Illinois Revised Statutes, and that in this case the statute does not apply. 2. That the plaintiff provoked the occurrence she complains of. 3. There was no attack. 4. The only purpose of the statute was to eliminate the requirement of proving knowledge on the part of the owner. 5. That the plaintiff was harboring or keeping the dog at the time of her injury.

In considering the five points raised by the defendant, points Nos. 1, 3 and 4, since they involve a construction and interpretation of the statute, will be considered together.

The defendant contends that there has been no allegation of negligence on the part of the defendant, and no contention that the defendant caused the occurrence. This is true. The complaint alleges the ownership of the dog, which is not disputed, sets forth that she was attacked or injured at her home by the dog of the defendant by reason of its running upon or against her in such manner as to knock the plaintiff from her back steps and thereby throwing her with great force and violence to and upon the ground. The complaint alleges the peaceful conduct of the plaintiff, negatives any provocation on her part, and sets forth verbatim Chapter 8, Section 12(d) of the Statutes, and alleges the injuries and damages. If the statute applies to this case, there is no need to allege knowledge of the owner, negligence of the owner, or that the defendant in any way contributed to or by any act of his caused the occurrence in question. The statute is entitled "Dogs attacking or injuring person — Liability of owner." This court cannot agree with the contention of the defendant that the words "attacks or injures" must be construed to mean "attacks and injures." If the Legislature had intended to say "and" instead of "or" they could have very easily done so. But instead the statute as written uses the word "or." As said in the case of Voight v. Industrial Commission, 297 Ill. 109, at page 114, "The word `or' is sometimes considered to mean `and,' and vice versa, in the construction of statutes. This is not done except in cases where there is an apparent repugnance or inconsistency in a statute that would defeat its main intent and purpose. When these words are found in a statute and their accurate reading does not render the sense dubious they should be read and interpreted as written in the statute. (People v. VanCleave, 187 Ill. 125.)"

The defendant cites the case of Winner v. Kadow, 373 Ill. 192, in support of his contention that the word "or" as used in the statute must be construed as "and." A reading of that case fails to support that contention. That case, at page 195, says: — "Statutes must, if possible, be so construed as to give effect to each word, clause or sentence in order that no such word, clause or sentence may be deemed superfluous or void. (People v. Flynn, 265 Ill. 414; Consumers Co. v. Industrial Com. 364 id. 145.)"

The defendant cites the case of Bossert v. Wabash R. Co., 338 Ill. App. 488, to support the theory that the rule of ejusdem generis applies to this statute. The rule of ejusdem generis is that general words following particular ones should be construed as meaning of the same general character, sort, kind or class with those named. Holmes v. Rolando, 320 Ill. App. 475; Bullman v. City of Chicago, 367 Ill. 217; Bossert v. Wabash R. Co., 338 Ill. App. 488. Here two words were used, "attacks" or "injures." It is difficult to see how either of the two words could be held to be a particular word, and the other a general. Each imports a definite act. The words are not words of a similar meaning. As argued by the defendant, there can be an attack without any injury. Similarly there can be an injury without an attack. This court would only be justified in construing the statute where there is an inconsistency or repugnancy. Ordinarily, the words of a statute must be given their plain and ordinary meaning. The plain and obvious meaning of the language used by the legislature is the safest guide to follow in construing any act. Landry v. Shinner & Co., 344 Ill. 579; Howlett v. McGarvey, 334 Ill. App. 512. Reading the statute and giving to the words used their plain and ordinary meaning, it must be recognized that the legislature intended to create two liabilities on the part of the owner of a dog, one if the animal injured a person who is peaceably conducting himself in a place he may lawfully be, or one if the animal attacks a person under such circumstances. To hold otherwise would be to negative the clear intent of the legislature as this court interprets the language used.

The position of the defendant that the words "attacks or injures" should be construed as meaning "attacks and injures," as set forth in his brief, is inconsistent with defendant's Instruction No. 33, given by the court, which predicated a finding of liability upon the jury finding from the evidence that the dog did attack or injure the plaintiff. In the case of Jones v. Stoneware Pipe Co., 277 Ill. App. 18, that court said: ". . . a party cannot, upon appeal, ...


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