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Thompson v. Dawson

OPINION FILED SEPTEMBER 30, 1985.

DORIS THOMPSON ET AL., PLAINTIFFS-APPELLANTS,

v.

DAVE DAWSON ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of McLean County; the Hon. William D. DeCardy, Judge, presiding.

JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 28, 1985.

Plaintiffs brought this action against defendants James Stubblefield and Dave Dawson to recover for injuries sustained on August 6, 1982, when a large black Labrador dog ran in front of the motorcycle plaintiffs were riding and was struck. Plaintiffs sued defendant Stubblefield as the owner of the dog and Dawson as the keeper or harborer of the dog as under section 16 of the Animal Control Act (Act) (Ill. Rev. Stat. 1983, ch. 8, par. 366). After bench trial, the circuit judge entered a memorandum opinion and order in favor of the defendants, and against plaintiffs, after concluding that the evidence did not establish that either defendant met the statutory definition of "owner." We affirm.

At the hearing, Jane Canfield testified that the black Labrador dog, a stray, had been observed in the rural McLean County area during the summer months of 1982. She first saw it near her own home on Monday, July 26, 1982. She tried to run the dog off, but it came and went. The following Sunday, the black dog was at her church, jumping all over people. Canfield testified that the Stubblefields took the dog in their truck, in order to get it away from the small children at the church.

Betty Stubblefield, wife of defendant James Stubblefield, testified that she and her husband took the dog to their property and let it loose. They had a dog of their own, which they kept in the basement at night, and had no intention of keeping the black dog. However, Mrs. Stubblefield testified that she could not stand to see a dog go hungry, so she put separate bowls for food and water near a tree for the black dog. They intended to find it a home or take it to the animal shelter. On Monday, the dog came and went from their property. On Tuesday, they did not see the dog, and it had not been there to eat. On Wednesday morning, she and her husband left for Freeport, where her husband was to attend assessor's school through Friday. She further testified that Dave Dawson fed their animals when they were away and that she asked him to do so on this occasion. As to the black dog, she asked Dawson to keep food and water under the tree, but if the dog did not come around not to look for it because it was going to the animal shelter when they returned if no one had taken it.

Defendant James Stubblefield testified, largely corroborating the testimony of his wife. He stated that the dog was on the barn lot on Wednesday morning, when they left for Freeport.

Dawson testified, largely corroborating the testimony of the Stubblefields. He testified that he never actually saw the black dog eat or drink at the Stubblefield property. He said the extra food he put out would disappear at night sometimes, but other times would not. He saw the dog on the Stubblefield property on the barn lot on one day when he went to take care of their animals, but other than that had nothing to do with the dog and never petted or came into contact with it. The black dog ran into the road from Dawson's property, one half mile from the Stubblefield property, on the day of the accident. Dawson testified that he had not seen the dog on his property before the accident.

Section 16 of the Act provides:

"If a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained." (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 8, par. 366.)

The term "owner" is defined in section 2.16 of the Act, which states:

"`Owner' means any person having a right of property in a dog or other animal, or who keeps or harbors a dog or other animal, or who has it in his care, or acts as its custodian, or who knowingly permits a dog or other domestic animal to remain on or about any premise occupied by him." (Ill. Rev. Stat. 1983, ch. 8, par. 352.16.)

In reaching his conclusion, the trial judge stated that the isolated act of feeding and watering a stray does not make one an owner upon whom liability may be imposed within the meaning of the statute. (See McEvoy v. Brown (1958), 17 Ill. App.2d 470, 479, 150 N.E.2d 652, 656.) The judge further noted that the accident occurred a relatively short time after the animal was transported to the area of Stubblefield's rural home (less than a week), and one half mile from the premises where it was purportedly harbored.

The plaintiffs pro se appeal challenges the circuit court's interpretation of the term "owner" as used in the statute as not including either of the defendants.

The Act creates a right of action unlike the common law remedy, and in order to recover under the statute, it is unnecessary to prove negligence, at least as to the owner. (Bailey v. Bly (1967), 87 Ill. App.2d 259, 261-62, 231 N.E.2d 8, 9.) Village of Northbrook v. Cannon (1978), 61 Ill. App.3d 315, 318, 377 N.E.2d 1208, 1210-11, involved ...


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