#### Silverglade et al. *v.*Von Rohr, by His Next Friend.

*Dogs*— Liability *of owner*— Section *5888, General Code*— Negli*gence not determinative*— Remittitur *by trial court*— Charge' *to jury*— Measure *of damages*— Compensatory *damages.*

1. The liability imposed by Section 5838, General Code, upon the owner or keeper of a dog that chases, worries, injures or kills a person, is in no sense dependent upon the negligence of such owner or keeper.

2. A trial court upon finding the damages assessed by a jury to be excessive, hot the result of passion or prejudice, may order a remittitur of the excess as a condition precedent to entering judgment upon the verdict, and upon the remittitur being made may enter judgment for the amount of the verdict, less the remittitur. *(Pendleton St. Rd. Co.*v. *Rahmann,*22 Ohio St., 446, approved and followed.)

3. Where the language of a charge of the court to the jury limits the recovery to “the natures and extent of the in*76juries * * * the pain and suffering,” as disclosed by the evidence, such limitation is equivalent to a limitation of the recovery to compensatory damages, and is not prejudicially erroneous.

(No. 17498

Decided February 20, 1923.)

Error to the Court of Appeals of Hamilton county.

Since the trial of this case the defendant, Meyer Silverglade, has deceased, and his executors, the plaintiffs in error here, have been substituted in his stead.

The petition avers:

“On February 14, 1919, about the hour of twelve-thirty noon, the plaintiff was lawfully operating a Ford Touring Car, the property of his father, Henry Von Rohr, along Reilly Road, in the Village of Wyoming, Ohio, and was going at a moderate rate of speed not exceeding fifteen miles per hour, and was traveling in an easterly direction. When nearing the residence of the defendant, Meyer Silverglade, the plaintiff cut off the gas and spark from the said automobile, and when he had reached the drive-w^y leading to the defendant’s residence, which is situated on the south side of Reilly Road in said village, a known vicious and dangerous dog, owned by the defendant and harbored by him, which habitually ran after automobiles passing along the said Reilly Road, ran out of said driveway into and upon said Reilly Road directly in front of said automobile. To avoid hitting and running over the said dog, the plaintiff made a turn to get out of his way, but the dog continued in front of said automobile in such a *77position that plaintiff struck the said dog with the front wheel of said automobile, without any fault on his part and without any negligence on his part, throwing the said automobile out of control, and causing it to run into a tree on the north side of the said Beilly Eoad, and the plaintiff was thrown with great force and violence against the top and wind shield of said machine and rendered unconscious.”

The amended answer of defendant below makes the issue of negligence on the part of the plaintiff.

The jury returned a verdict for plaintiff in the sum of $7,500.

Upon motion for a new trial the court found that the damages assessed by the jury were excessive in the amount of $3,000, and ordered that unless the' plaintiff remit from the verdict that sum a new trial would be granted. Thereupon the plaintiff consented to the remittitur and judgment was entered for $4,500. Error was prosecuted to the court of appeals where the judgment was affirmed. Error is prosecuted here from the judgment of affirmance.

*Messrs. Cohen, Mach & Hurtig*and *Messrs. Boettinger <& Street,*for plaintiffs in error.

*Mr. Wm. B. CollAns,*for defendant in error.

Robinson, J.

Plaintiffs in error make three questions :

1. Whether under Section 5838, General Code, the owner of a dog that chases, worries, injures or kills a person is liable to the person so damaged, or his estate, for the injury done, in the absence of negligence on the part of the owner in the keeping of the dog.

*782. Whether the trial court in an action for unliquidated damages, where the nature of the case precludes the jury from arriving at the amount of the verdict wholly by a mathematical computation, may, upon finding the damages assessed to be excessive, order a remittitur of the excess as a condition precedent to the overruling of the motion for a new trftil, and upon the remittitur being made enter judgment for the amount of the verdict less the remittitur; or whether the court in such case must grant a new trial.

3. Whether a charge by the trial court to the jury in the following language, “In case you find for the plaintiff, you will then consider the question of damages, and in this connection, if you find for the plaintiff, you should take into consideration the natures and extent of the injuries, whether or not such injuries are permanent, the pain and suffering which the plaintiff has endured, if any, and award him such damages as you believe from the evidence he is entitled, ’ ’ is so prejudicially erroneous as to require a reversal, for the reason that it does not sufficiently limit to compensatory damages the damages which the jury may assess.

This court had under consideration the provisions of Section 5838, General Code, in the case of *Kleybolte*v. *Buffon,*89 Ohio St., 61. That was a case where the plaintiff had been bitten by the dog of the defendant, and upon the trial the court permitted evidence to go to the jury that the dog had bitten other persons prior thereto, and that defendant had knowledge of that fact and with such knowledge had permitted the dog to run at large without a muzzle, and charged the jury that the mere ownership of the dog which inflicted the injury rendered the own*79er liable, and that knowledge of its vicious propensities was unnecessary; that the only questions for determination by the jury were whether plaintiff was bitten by the dog owned by the defendant and if so the amount of the damages. That court, however, further charged that in considering the question of damages the jury were to take into consideration the evidence tending to show *scienter,*as matter in aggravation of plaintiff’s damages. Upon that state of facts this court reversed the judgment because the charge of the court warranted the jury in awarding punitive damages in addition to conipensatory damages, and held: “In such an action, evidence tending to show the dog had bitten another person prior to the time that the plaintiff was bitten, and that defendant had knowledge thereof, is inadmissible.”

The effect of that decision is to hold the owner or harborer of a dog liable, under Section 5838, General Code, for all damages occasioned to a person who is chased, worried, injured, or killed by such dog, and the necessary elements to establish such liability are. the ownership of the dog and the injury sustained because of the dog.

Applying that doctrine to the instant case it was only necessary for the plaintiff to prove that the defendant was the owner of the dog, that the dog chased or worried plaintiff, that as a proximate result of such chasing or worrying plaintiff was injured, and the extent of the injury sustained.

In other jurisdictions similar statutes have had a similar* interpretation. *Tasker*v. *Arey,*114 Me., 551; *Williams*v. *Brennan,*213 Mass., 28; *Malafronte*v. *Miloni,*35 R. I., 225, and *Jenkinson*v. *Coggins, 1*23 Mich., 7.

*80We adhere to the interpretation of Section 5838, General Code, as declared in the case of *Kleybolte*v. *Buffon, supra.*

Upon the question of remittitur of the excess of an excessive verdict, this court in the case of *Pendleton St. Rd. Co.*v. *Rahmann,*22 Ohio St., 446, declared: “Where the damages assessed by a jury are excessive, but not in a degree to necessarily imply the influence of passion or prejudice in their finding, the court, in the exercise of a sound discretion, may make the *remittitur*of the excess the condition of refusing to grant a new trial.” That was a case for personal injury where necessarily the amount of the verdict could not be arrived at wholly by a mathematical computation, but was the result of the composite opinion of a jury.

In the case of *C. & M. Rd. Co.*v. *Himrod Furnace Co.,*37 Ohio St., 434, this court again declared: “The court may, where it can be done, ascertain from the evidence the amount of such excess, and may, on a remittitur of the same being entered, affirm the judgment as modified.” That was a case grounded upon contract and the amount of the verdict was dependent upon the proof of payment of certain definite sums, and the duty of the jury in arriving at the amount of the verdict was, after having determined that the payments had been proven, to ascertain the amount of the verdict by a more or less accurate mathematical calculation. It probably is not an authority for a remittitur, such as here made.

However, the case of *Pendleton St. Rd. Co.*v. *Rahmann, supra,*has been extensively followed by the trial courts of this state, and this court, in the case of *Ohio Traction Co.*v. *Shearer,*97 Ohio St., *81332, affirmed the judgment on the authority of that case. And, as recently as the ease of *Schendel*v. *Bradford, Admr.,*106 Ohio St., 387, which was an action for the wrongful death of a boy six years of age, this court held: “Where a reviewing court finds the verdict excessive, and that a judgment entered for the balance after remittitur of a part of the amount thereof is also excessive, it becomes the duty of the court, if further remittitur is not required and consented to, to remand the cause for new trial,” and were it not for the case of *Toledo Railways & Light Co.*v. *Paulin,*93 Ohio St., 396, wherein this court held, “A reviewing court, upon finding that the verdict of a jury assessing damages for personal injury is such in amount that it is not supported by the weight of the evidence, and therefore excessive, may remand the cause for a new trial, but is not authorized upon such ground to modify the judgment,” it might be said that the power of the court to order a remittitur as a condition precedent to entering judgment upon the verdict is the settled law of Ohio; but, since this court neither saw fit to overrule the cases of *Pendleton St. Rd. Co.*v. *Rahmann, supra,*and *C. & M. Rd. Co.*v. *Himrod Furnace Co., supra,*in the case of *Toledo Railways & Light Co.*v. *Paulin, supra,*nor to overrule *Toledo Railways Light Co.*v. *Paulin, supra,*in the case of *Ohio Traction Co.*v. *Shearer, supra,*or in the case of *Schendel*v. *Bradford, supra,*we can go no further than to say that the greater weight of authority in Ohio is to the effect that either the trial court, or the court of appeals, may order a remittitur as a condition precedent to entering judgment upon the verdict.

*82The weight of authority in other jurisdictions seems to support the doctrine of the case of *Pendleton St. Rd. Co.*v. *Rahmann, supra.*

In 20 Ruling Case Law, at page 316, Section 100, the author states his conclusions as to the weight of authority, as follows:

“But where there is no legal measure or standard for fixing the amount of recovery, there is quite a contrariety of opinion as to the right to exercise this power. In some jurisdictions a new trial must be granted unconditionally in such a case, and it is error to make it conditional upon reducing the amount of the verdict. [Citing cases from Georgia, South Dakota, West ‘Virginia, and English cases.] '* * * In other jurisdictions it is the practice to permit a remittitur where the verdict is excessive whether the excess is susceptible of computation or not, and this is the more general rule.” (Citing cases from Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Tennessee, Washington, Wisconsin and the United States Supreme Court.)

The majority of this court adhere to the doctrine announced in the case of *Pendleton St. Rd. Co.*v. *Rahmann, supra.*

The remaining question is whether the charge of the trial court was erroneous. The court limited the amount of damages to the “natures and extent of the injuries, whether or not such injuries are permanent, the pain and suffering which the plaintiff has endured, if any,” and instructed the jury to “award him such damages as you believe from the evidence he is entitled.”

It will be observed that the court failed to use the word “compensation” in connection with the amount *83of the damages which might be awarded, but did limit the award to the extent of the injuries, pain and suffering of plaintiff which the evidence disclosed. There is nothing in the charge which would warrant the jury in attempting to do other than make plaintiff whole, and the amount of the verdict in view of the extent of the injury was such that it is doubtful whether a reviewing court would have disturbed the original verdict. In such situation a court will not assume, in the face of a record which refutes the assumption, that the party complaining has been prejudiced by the omission of the court to use in his charge the most appropriate language. While we do not commend the language of this charge in that respect, yet the charge as given would seem to us to convey to the minds of the jurors no other impression than that of compensation for injuries sustained, pain and suffering.

We find no prejudicial error and the judgment of the court of appeals is affirmed.

*Judgment affirmed.*

Wanamaker, Jones, Day and Allen, JJ., concur.

Marshall, C. J., concurs in proposition 1 of the syllabus but not in the judgment.

Matthias, J., concurs in propositions 1 and 3 of the syllabus, but not in the judgment.