Hill v. Skinner

OPINION BY: DOYLE.
This is an action under the Ohio statute (Section 5838, General Code), seeking to hold the owners and harborers of a dog called "Chang" with liability for damages arising out of an episode in which the dog, Chang, is alleged to have seized with his teeth and injured a youngster aged approximately four, the petitioner herein.

A jury, upon trial, awarded damages in the amount of $ 500. The judgment rendered thereon, in the Court of Common Pleas of Summit county, is a part of the final order from which this appeal is taken, and consideration will be first given to the legality of this money judgment.

The appellants say "There was no evidence of a 'bite' anywhere in the record from any of the witnesses save the plaintiff himself. Without this . . . minor's testimony there was evidence of injury only with barbed wire, glass, a gashed steel barrel and other dogs being present as explanation."

It is a fact that there is no direct testimony of this dog's attack except that given by the child. If this evidence has probative worth, and is competent, it, coupled with the circumstances and other facts shown to exist, is sufficient to furnish the degree of proof necessary to sustain the judgment.

Section 11493, General Code, reads:

"All persons are competent witnesses except those of unsound mind, and children under ten years of age who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly."

The Supreme Court of this state has recently ruled on that part of this statute pertaining to witnesses claimed to be of "unsound mind."

"2. The competency of an insane person to testify as a witness lies in the discretion of the trial judge and a reviewing court will not disturb the ruling thereon where there is no abuse of discretion." State v. Wildman.

And in 2 Wigmore on Evidence, it is said:

"With reference to the general capacity to observe, recollect, and narrate, the same principles apply to Mental Immaturity that are applied to Mental Derangement."

The essential test of the competency of an infant witness is his comprehension of the obligation to tell the truth and his intellectual capacity of observation, recollection and communication. The nature of his conception of the obligation to tell the truth is of little importance if he shows that he will fulfill the obligation to speak truthfully as a duty which he owes a Diety or something held in reverence or regard, and if he has the intellectual capacity to communicate his observations and experiences.

The trial court, in chambers, examined the child at length, touching upon his qualifications to testify. Among other questions he was asked: "Do you know about telling the truth, what happens if you don't tell the truth?" and he answered, "They won't love me." Question: "Who won't love you?" Answer: "God won't love me." And in further answer to dozens of questions propounded by both the judge and counsel, the child demonstrated a capacity for memory of events, observation, recollection and communication.

Following this necessary and proper examination by the trial judge of the prospective witness, the court permitted him to testify. The child thereupon, upon direct examination, testified in part as follows:

"Q. Cary do you remember when you went over to Skinner's? A. Sure.

"Q. Tell the judge and jury what happened. A. The doggy bit me.

"Q. What doggy bit you? A. Skinner's doggy.

"Q. What were you doing with Skinner's dog? A. I was loving him.

"Q. How? A. Like that. (indicating.)

"Q. You mean around his neck? A. Yes."

On cross-examination appears the following:

"Q. Where did Chang bite you, can you tell the ladies, take your fingers and show me where he bit you? A. He bit me when I was loving him.

"Q. Where did he bite you, did he bite you on the leg? A. No, he bite me on the head and on my mouth here. (indicating.)"

As we view the testimony, the youthful narrator, except for a few nonresponsive answers, clearly described and explained the circumstances giving rise to this action. The evidence considered as a whole describes the wandering of the child out onto his neighbor's yard and the subsequent attack of the dog, under circumstances clearly related by the child. There is nothing in the record to show, except through pure guess and speculation, that the head injuries resulted from any other cause.

Paraphrasing a syllabus in State v. Wildman, supra, to fit this case, the rule may be pronounced to be that the competency of a child of mental immaturity to testify as a witness lies in the discretion of the trial judge, and a reviewing court will not disturb the ruling thereon when there is no abuse of discretion. In the instant case we find no such abuse. We further find that the evidence in the record is such as to warrant the jury in finding in favor of the petitioner. . . .

In this case the judgment of the Court of Common Pleas will be modified to the extent of complying with the provisions of Section 5839, General Code, and as so modified the judgment will be affirmed.

Judgment modified and affirmed as modified.