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Siewerth v. Charleston
Citations: 231 N.E.2d 644; 89 Ill. App. 2d 64; 1967 Ill. App. LEXIS 1369Docket: Gen. 51,726
Court: Appellate Court of Illinois; November 16, 1967; Illinois; State Appellate Court
Roy Siewerth, a minor represented by his father Ralph Siewerth, filed a lawsuit against Ruben Charleston for injuries sustained from a dog bite. The Illinois Appellate Court reviewed the case, where the plaintiff sought to reverse a judgment of $500.30, claiming it was inadequate and unsupported by the evidence. The defendant cross-appealed for the judgment to be reversed entirely. The incident occurred on June 8, 1963, when seven-year-old Roy was playing on the front porch of the defendant's home with a friend, Kevin Charleston. A Rhodesian Ridgeback dog, weighing approximately 100 pounds, was also on the porch. Prior to the bite, Roy had kicked the dog twice, provoking it, and Kevin kicked it shortly after, leading to the dog growling at both boys. Despite being warned by Kevin’s mother to leave the porch, the boys did not comply. The dog subsequently bit Roy, causing injuries to his forehead and face. The relevant Illinois statute imposes liability on dog owners for injuries caused by their dogs if the victim was peacefully situated in a lawful location when attacked. The court examined the circumstances surrounding the incident, including prior warnings about staying off the porch and the provocation of the dog by the boys. Plaintiff testified that Kevin claimed, during an interrogation, that both he and the plaintiff kicked a dog before it bit the plaintiff. Kevin stated he kicked the dog "about two or three times," and the plaintiff acknowledged he also kicked the dog twice. The defendant argues that the plaintiff failed to establish all necessary elements of a cause of action under relevant statute, specifically that the plaintiff acted with provocation, which negates liability. The required elements include injury caused by a dog owned by the defendant, lack of provocation, peaceable conduct of the injured party, and lawful presence at the incident location. The defendant contends that the plaintiff's actions constituted provocation, as he kicked or pushed the dog twice, and Kevin's subsequent actions further provoked the dog. The plaintiff countered that he did not intend to provoke the dog and that the dog had previously not shown aggression. However, the court found that the plaintiff’s actions did demonstrate intent to provoke, especially as the dog growled after being kicked. Additionally, the court noted that both the plaintiff and Kevin’s actions amounted to continuous provocation. The defendant also alleged that the plaintiff was not peaceably conducting himself and was not in a lawful place, but the court deemed it unnecessary to address these points due to the finding of provocation. Consequently, the judgment in favor of the plaintiff was reversed.