Legault v. Malacker

145 N.W. 1081, 156 Wis. 507, 1914 Wisc. LEXIS 135

Opinion

Winslow, O. J.

The respondent claims that the complaint should allege (1) that the dog was vicious or mischievous, and (2) that the defendant had knowledge of that fact.

Upon these contentions the court holds:

1. Sec. 1620, Stats. 1911, makes allegation and proof of scienter unnecessary as well in case of injuries to persons as in case of injuries to cattle by dogs. The doubts expressed in Kertschacke v. Ludwig, 28 Wis. 430, and Slinger v. Henneman, 38 Wis. 504, are not considered well founded.

2. Where a complaint alleges that a dog attacked and wounded a person who at the time was where he might lawfully be and in the exercise of ordinary care, it is unnecessary to go further and allege that the dog was vicious or mischievous. Such a dog is necessarily vicious and a separate allegation to that effect is unnecessary. The law no longer “allows a dog his first bite,” as was said to be the case before the passage of the law abolishing proof of scienter.

By the Court. — Order reversed, and action remanded with directions to overrule the demurrer to the complaint.