The plaintiff is a minor who sues by his guardian and next friend. He claims to have proved, upon the trial to the jury, that while he was lawfully traveling upon the highway he was bitten by the defendant's dog. The defendant thereupon claimed to the court that the action, by reason of the averments of the complaint, was one at common law, and asked the court to give the jury instructions upon the subject of scienter and contributory negligence, which he claimed to be appropriate to that form of action. The only reasons of appeal which are pursued in the brief of his counsel relate to the refusal of the court to give those instructions.
It is conceded by them that none of the reasons of appeal are well founded unless the complaint is to be regarded as one at common law. They contend that it must be so regarded, since the statute is neither counted upon nor recited therein. Gould on Pleading (Ed. 1877), Chap. 3, § 16, note. Whatever may have been the rule formerly, and as applicable to common-law declarations, it is not now, and under our Practice Act, essential to the sufficiency of complaints framed for recovery upon a domestic public statute, not penal, that the statute be either counted upon or recited. It is enough if the averments of the complaint are such as to show that the action is brought upon the statute and not otherwise. Griswold v. Gallup, 22 Conn. 208;Clark v. North Muskegon, 88 Mich. 308; McHarg v. Eastman, 35 Howard's Pr. 205; Hance v. Wabash Western Ry.Co., 56 Mo. App. 476; Ervin v. State ex rel. Walley, *Page 571 150 Ind. 332; Denver T. G. R. Co. v. De Graff,2 Colo. App. 42; Morrisey v. Hughes, 65 Vt. 553. This principle has even been extended to apply to actions upon penal statutes.Reynolds v. Chicago Alton Ry. Co., 85 Mo. 90;State v. Owsley, 17 Mont. 94; Bliss on Code Pleading, § 181. In Broschart v. Tuttle, 59 Conn. 1, the question of the propriety of this extension was raised but not passed upon. Our statute (§ 4487) regulating the liability for damage done by dogs is a remedial and not a penal one. Sedgwick on Stat. Law, 32; Neal v. Moultrie, 12 Ga. 104.
The present complaint was unmistakably framed upon the statute. By no possibility is it susceptible of a double character. It sets out the precise facts which bring the case within the statute, and none others, and thus pleads it. Gould on Pleading (Ed. 1877), Chap. 3, § 16, note. It does not state a cause of action at common law. Averments essential to such an action are wholly absent. At common law an allegation of scienter, or an averment of other facts dispensing with the necessity of its presence, was essential.Woolf v. Chalker, 31 Conn. 121; Beckett v. Beckett,48 Mo. 396; Mareau v. Vanatta, 88 Ill. 132; Spring Co. v. Edgar,99 U.S. 645; Buxentine v. Sharp, 3 Salk. 12; 1 Chitty's Pleading, [*]72; 2 Cyc. 368 et seq. This complaint contains neither.
There is no error.
In this opinion the other judges concurred.