Appeal from Lapeer, Norman A. Baguley, J.
McGregor, P. J., and Bashara, and Allen, JJ.
1. Animals -- Negligence -- Domestic Animals -- Escapes -- Vicious Propensities -- Owner's Knowledge -- Jury Instructions.
A cause of action exists when one alleges that an owner keeps a vicious animal with knowledge of the animal's vicious propensities and that the animal escaped causing injury, and it is unnecessary to aver negligence on the part of the owner or keeper in securing and taking care of the animal; therefore, a trial Judge's instructions to the jury which stated that a defendant was not responsible for personal injuries caused by the defendant's goat, after it escaped, if it escaped by means beyond the defendant's control, were reversibly erroneous.
2. Animals -- Negligence -- Domestic Animals -- Owners or Custodians -- Escapes -- Vicious Propensities.
An owner or custodian of a domestic animal can be held liable for injuries caused by the animal, upon its escape, on a negligence theory for failing to control or restrain the animal; where an injured party is unable to prove the vicious propensities of an animal, and that the owner or custodian knew of such propensities, then the owner's negligence in controlling or restraining the animal becomes an issue.
3. Animals -- Negligence -- Domestic Animals -- Escapes -- Vicious Propensities -- Owner's Knowledge -- Jury Instructions.
An owner or custodian of a domestic animal who has knowledge of the animal's vicious propensities is liable for personal injuries caused by the escape of the animal regardless of fault; where a defendant, in an answer to an interrogatory, admitted being attacked by a goat and the answer to the interrogatory was read into evidence, the evidence could have supported a finding that the defendant had knowledge of the vicious propensities of the goat, and it was reversible error for the trial Judge to give jury instructions in terms of the owner's negligence in securing the animal and stating that if the animal escapes by means beyond the control of the owner or custodian there is no responsibility for any injury resulting therefrom.
4. Animals -- Negligence -- Domestic Animals -- Owner of Premises -- Directed Verdict.
One who owns and controls the premises upon which a domestic animal is kept may be held liable as the custodian of the animal; where in a suit for damages caused by a goat there was no evidence presented in the plaintiff's case in chief that a certain defendant owned and controlled the premises on which the goat was kept, a directed verdict for that defendant was proper.
5. Attorney and Client -- Statements by Counsel -- Binding Client.
Statements made by counsel are not to be considered as evidence; where a defendant's attorney stated in his opening arguments that a certain defendant owned the farm in question, it was not an admission binding on that defendant.
The opinion of the court was delivered by: Bashara
Complaint by Ernest M. Papke, Jr., as personal representative of the estate of Ernest M. Papke, Sr., deceased, against Russell Tribbey and Ann Lois Tribbey, his wife, for wrongful death and damages arising out of an attack by the defendants' goat on the deceased. Judgment, on a directed verdict, for defendant Ann Tribbey, and a jury verdict in ...