Opinion
April 4, 1951 —
May 8, 1951.
APPEAL from a judgment of the circuit court for Juneau county: BRUCE F. BEILFUSS, Circuit Judge. Affirmed.
The cause was submitted for the appellant on the brief of Lloyd L. Chambers of Mauston, and for the respondent on the brief of Curran Curran of Mauston.
An action for damages was commenced on December 16, 1949, by Louis Laridaen, plaintiff, against Railway Express Agency, Inc., defendant. The case was tried to a court and jury and from judgment entered June 26, 1950, in favor of plaintiff and against defendant in the sum of $519.29 damages and costs, defendant appeals.
Plaintiff bought a dog from one Fultz who shipped it to the owner's home at Mauston, Wisconsin, via the Railway Express Agency, Inc. Upon its arrival at Mauston on January 14, 1949, the dog was found to be suffering from an ailment as a result of which it died on February 7, 1949. The action is for damages caused by the alleged negligence of the defendant in the transportation of the dog.
From the testimony of a veterinarian who examined the dog on or about the day of its departure from California, January 10, 1949, and the owner who delivered it to the defendant for shipment, it appears that the dog left Napa, California, in good condition, not showing any evidence of an injury, and that it was properly crated for shipment. The veterinarian testified that while there was no indication that the dog had received any blow upon his body it is possible that he could have received some blow or injury within thirty days before the date of the examination; that he could find no external evidence of a blow or injury; that if the animal had received such blow or injury he believes he would have observed it.
The agent of the defendant company who received the dog at Napa, California, also testified that he observed nothing unusual about the dog and that it appeared to be normal upon receipt; that he did not notice any lameness or dropping of the head. The dog arrived at Mauston on January 14th. Upon its arrival plaintiff removed it from its crate; "he stumbled and seemed to fall back as if his back or rear quarters weren't right." Plaintiff called a Mauston veterinarian who examined the dog on the day following its arrival and treated it for about three weeks. He found a condition which indicated to him that paralysis was setting in upon the rear part of its body. The paralysis progressed forward upon the dog's body, became progressively worse, and resulted in its inability to take nourishment. He concluded that the dog must have received a cranial injury and that some blow must have been dealt which injured the inner part of the brain. He could not tell when the blow was inflicted. He ruled out every possibility of cause except that of a blow upon the dog's head. He testified that it was not possible for him to tell whether the blow occurred two or three days or two or three weeks before his examination but did state that it was his opinion that the injury must have occurred quite recently, something less than a week.
Trial to a jury resulted in a verdict and judgment for plaintiff. Defendant appeals.
It appears from a careful examination of the record that there is nothing pointing to the cause of the dog's condition when it arrived at Mauston except the statement of the Mauston veterinarian that it was his opinion that the dog must have received a blow. His testimony permits of no more than conjecture as to the cause. The record is in such state that neither the jury, the court, nor we may attribute the dog's condition to any particular cause.
The common-law rule is that, in the absence of special contract, the liability of a common carrier for the loss or injury of property received by it for transportation, subject to certain exceptions is, in effect, that of an insurer. 9 Am.Jur., Carriers, p. 813, sec. 661. The rule is applicable in the case of transportation of livestock, 9 Am. Jur., Carriers, p. 841, sec. 694, p. 948, sec. 845, and is stated in John Schroeder L. Co. v. Chicago N.W. R. Co. 135 Wis. 575, 578, 116 N.W. 179:
"The defendant is a common carrier and as such contracted with the plaintiff to transport the horses and other personal property in question from Saxon to Ashland for the usual consideration. Under this contract defendant was an insurer against all damage to or loss of the property intrusted to it during transit, except such loss or damage as might arise from the acts of God, public enemies, or the acts of the owner himself, and also `subject to some restrictions and liabilities arising out of the instincts, habits, propensities, wants, necessities, vices, or locomotion of the animals.'"
The duty of the carrier is absolute unless it is able to bring its case within one of the exceptions to the rule, and where he relies upon one of the exceptions it is his burden to show that the exception is a cause of the loss. 9 Am. Jur., Carriers, p. 944, sec. 840.
Defendant failed to establish that the loss arose either from an act of God, a public enemy, or the act of the owner. The record is also barren of any proof that the loss was caused by any of the instincts, habits, propensities, wants, necessities, vices, or locomotion of the dog.
The trial court properly concluded that the defendant had failed to establish that it had relieved itself of its obligation as an insurer.
Defendant contends that the provisions of secs. 174.05 and 174.10, Stats., prevent recovery. It is provided in sec. 174.05:
"Every owner of a dog more than six months of age on January first of any year . . . shall annually, at the time and in the manner provided by law for the payment of personal property taxes, pay his dog license tax and obtain a license therefor. . . ."
Sec. 174.10 (1), Stats., provides:
". . . No action shall be maintained for an injury to or the destruction of a dog . . ." unless tagged and licensed.
Personal property taxes are payable on or before February 28th, sec. 74.031 (2), Stats. The dog arrived at Mauston on January 14, 1949, and died on February 9, 1949.
To say that the statutes should be read so as to deny recovery in this case where the dog was approaching death when it arrived at Mauston and actually died when plaintiff still had nearly three weeks within which he was required to pay for and obtain a license would be to ignore the rule that statutes in derogation of the common law are to be strictly construed, Calvetti v. Industrial Comm. 201 Wis. 297, 230 N.W. 130, and that "a statute should not be construed so as to work an absurd result, and when it may be so construed ambiguity results, and justifies the invoking of principles of statutory construction to avert such a result." Carchidi v. State, 187 Wis. 438, 443, 204 N.W. 473.
To accept defendant's construction of the statutes would require us to deny recovery even if the dog had died at Mauston and before the removal of its body from the train. Certainly no such absurd result as that was intended by the legislature, particularly since it appears clearly that the exercise by the legislature of the power to license dogs is based, not upon the idea that immunity is to be granted to those injuring dogs, but upon the idea that a dog is liable to work mischief and therefore needs restraint as a protection to the public. Tenney v. Lenz, 16 Wis. *566; 3 C. J. S., Animals, p. 1092, sec. 9.
"A construction involving a conclusion so unreasonable, and leading to a result which makes the practical operation of the statute so manifestly unequal and unjust, cannot be supported unless required by language too clear to admit of any other interpretation." Whitcomb v. Keator, 59 Wis. 609, 613, 18 N.W. 469.
We do not consider that the language of the statute admits of the interpretation contended for by defendant.
By the Court. — Judgment affirmed.