Coleman, J. (for affirmance). Williams, J., concurred with Coleman, J. Fitzgerald, Lindemer, and Ryan, JJ., took no part in the decision of this case. Kavanagh, C. J. (for reversal). Levin, J., concurred with Kavanagh, C. J.
1. Appeal and Error -- Equally Divided Court.
A decision of the Court of Appeals that testimony as to a dog's prior behavior in a suit under the "dog-bite" statute is inadmissible because it is irrelevant and may be prejudicial is affirmed by an equally divided court (MCL 287.351; MSA 12.544).
Williams and Coleman, JJ.
2. Animals -- Dog Bite -- Prior Behavior -- Statutes.
The prior good or bad behavior of a dog is not relevant under the present "dog-bite" statute which has eliminated proofs of past conduct of a dog and the owner's knowledge of past conduct as conditions precedent to the owner's liability (MCL 287.351; MSA 12.544).
3. Animals -- Dog-Bite Statute -- Common Law -- Pleading.
The "dog-bite" statute and the common law can be employed in alternative counts (MCL 287.351; MSA 12.544).
4. Animals -- Common Law -- Vicious Nature.
A common-law action for damages against an animal's owner was based on the theory that whoever keeps an animal accustomed to attack and injure mankind, with knowledge that it is so accustomed, is prima facie liable to any person attacked and injured by the animal, without any affirmative negligence or default in the securing and taking care of it; the common law requires proof that the owner or keeper of an animal knew of its vicious nature.
5. Animals -- Dog Bite -- Statutes.
To provide redress for dog-bite victims, the Legislature by statute retained the common-law remedy but in addition enacted a statute which creates an almost absolute liability; under the dog-bite statute the only facts necessary to sustain a plaintiff's case are that the dog bit the plaintiff and that the biting was without provocation (MCL 287.351; MSA 12.544).
6. Animals -- Dog Bite -- Statutes -- Provocation.
The question for the jury, in an action under the dog-bite statute in which it was agreed that defendant's dog had bitten plaintiff's daughter, and also agreed that the girl had stepped on the dog's tail, was whether stepping on the dog under the circumstances described by witnesses constituted provocation (MCL 287.351; MSA 12.544).
7. Animals -- Dog Bite -- Evidence -- Relevance -- Statutes -- Prejudice.
Testimony of a series of witnesses regarding general previous acts by defendant's dog, entered over defendant's objection, was irrelevant and prejudicial in an action brought under the "dog-bite" statute (MCL 287.351; MSA 12.544).
8. Trial -- Prejudicial Error -- Prejudice -- Reversal.
Because prejudicial error implies a Conclusion that the substantial rights of a party were affected, once prejudice is found reversal is mandated.
Kavanagh, C. J., and Levin, J.
9. Animals -- Dog-Bite Statute -- Knowledge.
A dog owner's knowledge of a dog's temperament is not an issue when an action is brought solely under the "dog-bite" statute (MCL 287.351; MSA 12.544).
10. Animals -- Dog-Bite Statute -- Defenses -- Provocation -- Question of Fact.
The defense of provocation in an action under the "dog-bite" statute is a question of fact to be determined by the jury based on the circumstances of each case.
11. Animals -- Dog-Bite Statute -- Evidence -- Relevance -- Temperament -- Provocation.
Evidence of a dog's temperament is relevant to the issue of provocation in an action under the "dog-bite" ...