## Facts

- Cary Hill, about four years old, was injured in an incident involving the Skinners’ dog, “Chang.”
- No adult witnessed the event; the child was later observed with injuries consistent with being seized or struck, and the defense suggested other possible sources in the area (e.g., barbed wire, glass, or other hazards).
- Cary (through his parents/representative) sued the Skinners as owners/harborers under Ohio’s dog-injury statute (former Ohio Gen. Code § 5838).
- The only direct testimony identifying Chang as the attacker came from Cary himself.
- Before permitting Cary to testify, the trial judge examined him (outside the jury’s presence) about truth and lies and his ability to observe, remember, and relate events; the judge found him competent.
- The trial court admitted Cary’s testimony that the dog bit him.
- Over a hearsay objection, the trial court also allowed Cary’s mother to repeat Cary’s post-incident statement that “the doggy bite me.”
- The jury returned a verdict for Cary for $500, and the court entered judgment.
- Under the related statute (former Ohio Gen. Code § 5839), the case also presented whether a recovery for dog-inflicted injury required the court to declare the dog a “common nuisance” and order it killed.

## Issues

1. Whether the trial court abused its discretion by finding a four-year-old child competent to testify where his testimony was the only direct evidence of the dog’s attack.
2. Whether admitting the mother’s testimony repeating the child’s out-of-court statement (“the doggy bite me”) was reversible error because it was hearsay not qualifying as res gestae (spontaneous utterance).
3. Whether the evidence was sufficient to support the verdict when the child was the only direct witness to a “bite.”
4. Whether, after a recovery under Ohio Gen. Code § 5838, the court was required under § 5839 to declare the dog a common nuisance and order its execution.

## Decision

- Affirmed.
- Held the trial court did not abuse its discretion in ruling the four-year-old competent to testify after examining his understanding of truth-telling and his ability to perceive, recall, and communicate.
- Held the mother’s repetition of the child’s statement was hearsay and not admissible as res gestae because it was not sufficiently spontaneous, but its admission was not prejudicial because the child testified to the same facts at trial.
- Held that once the child’s testimony was properly admitted, it—together with the surrounding circumstances—was sufficient to support the judgment.
- Held that where a plaintiff recovers for injury under § 5838, § 5839 is mandatory: the court must declare the offending dog a common nuisance and order it killed.

## Legal Principles

- The competency of a child under ten depends on (1) comprehension of the obligation to tell the truth and (2) intellectual capacity to observe, remember, and communicate; the trial judge’s ruling stands absent an abuse of discretion.
- A statement qualifies as res gestae (spontaneous utterance) only if it is spontaneous/impulsive and not a reflective narrative of a past event or a response after time for deliberation.
- Erroneous admission of hearsay may be harmless where the same facts are proved by properly admitted evidence and the error does not affect the outcome.
- Ohio’s dog-injury statute (former § 5838) imposed liability on owners/harborers for injuries caused by a dog without requiring proof of negligence or prior knowledge of viciousness.
- Upon a recovery under former § 5838, former § 5839 required the court to treat the dog as a common nuisance and order its execution; the court had no discretion to choose a lesser remedy.

## Conclusion

In *Hill v. Skinner*, the Ohio appellate court affirmed a $500 dog-injury judgment based largely on a four-year-old’s testimony, holding the trial judge acted within his discretion in finding the child competent; the child’s statement to his mother was inadmissible hearsay and not res gestae but was harmless because the child testified to the same point; the evidence was sufficient once the child’s testimony was credited; and, after a statutory recovery for dog-inflicted injury, the court was required to declare the dog a common nuisance and order it killed under the governing Ohio statutes.


Hill v. Skinner, 79 N.E.2d 787 (1947)