Twigg v. Ryland

Alvey, O. J.,

delivered the opinion of the Court.

The appellants in this case were the plaintiffs below, and they brought the action to recover of the defendant for injuries received by the female plaintiff by the bite of a dog, alleged to have belonged to or to have been kept by the defendant, with knowledge that the dog was ferocious and dangerous.

In regard to the law of the case, it is well settled, that if any person keeps an animal mansuetce naturae, of a ferocious or vicious disposition, accustomed to bite or attack mankind, knowing that it is possessed of such disposition or vicious propensity, he is bound to restrain such animal at his peril; and if he allows it to escape or go at large, he is liable for all the injury it may inflict by attacking persons in consequence of such ferocious propensity. As declared by the Queen’s Bench, in May vs. Burdett, 9 Q. B., 101, “ Whoever keeps an animal accustomed to attack and bite mankind, with knowledge that it is so accustomed, is, prima facie, liable in an action on the case, at the suit of any person attacked and injured by the animal, without any averment of negligence or default in the securing or taking care of it. - The gist of the action is the keeping the animal after knowledge of its mischievous propensities.” The owner or keeper of the dog or other domestic animal must be shown to have had knowledge of its disposition to commit such injury, and the burden of proving this fact is on the plaintiff, though it would be otherwise if the animal was of a nature to be fierce and untamable, such as bears, *386 tigers, etc. Spring Co. vs. Edgar, 99 U.S., 654 . The notice which will charge the owner or keeper with liability for the vicious conduct of the animal must he notice that it was inclined to do the particular mischief that has been done. Hence, notice that a dog is ferociously disposed towards cattle, is no notice that he will attack persons. It is not necessary to show that the owner or keeper of a vicious dog has seen the animal attack mankind ; but it is sufficient to show that the vicious propensity of the animal has, in some way, been brought to the knowledge of the owner or keeper, so as to admonish him to take the necessary precaution to prevent injury in the future. Hence the question in each case is whether the notice was sufficient to put the owner or keeper on his guard, and to require him to anticipate the injury that has actually been done. . And this duty of guarding against the vicious propensity of a dog, or other domestic animal, is imposed upon the keeper thereof, irrespective of the fact of ownership. Cooley on Torts, 344.

The question presented hv the first bill of exception is as to the admissibility of evidence to "prove the scienter. After giving evidence of the injury inflicted by the dog, the plaintiffs gave evidence to prove that the defendant was a butcher in Cumberland, and that he had about his premises a colored man as an assistant, who drove the meat wagon and delivered meat to the customers of the defendant, and that the dog was frequently with him, and generally followed him. They then offered to prove that this colored man knew that the dog was vicious and dangerous, and was disposed to attack and bite and injure persons; and that such colored man, while in the employ of the defendant, had told one of the plaintiffs’ witnesses that he had made known to the defendant', before the injury to the plaintiff, that the dog was of a vicious disposition, and had attacked and bitten other persons. To this offer the defendant objected, and the objection was sustained by the Court, and, as we think, rightly sustained.

*387 It is very true, as shown by the authorities, that if the owner of a dog place it in the charge and beeping of a servant, the servant’s knowledge of the dog’s ferocious disposition is the knowledge of the master. But it is not true, that the knowledge of any servant that a dog may follow, or be with about the premises where he is employed, as to the disposition of the dog, is to be imputed to the master. This is clear upon all the authorities.

The case that goes as far, upon this question, as any other to be found in the reports, and which has been mainly relied on by the appellants, is that of Gladman vs. Johnson, 36 L. J., (C. P.) 153, where notice of the mischievous propensity of the dog, given to the wife of the defendant, who attended to the business of her husband in his absence, for the purpose' of being communicated to the husband, was held to be some evidence of a scienter to be considered by the jury. But in delivering judgment in that case, Bovill, C. J., says: “I am not prepared to assent to the proposition that notice to an ordinary servant, or even to a wife, would, in all cases, be sufficient to fix the defendant, in such an action as this, with knowledge of the mischievous propensity of the dog. But here it appears that the wife attended to the milk business, which was carried on upon the premises where the dog was kept, and that a formal complaint as to that dog was made to the wife when on the premises, and for the purpose of being communicated to her husband. It may be that this is but slight evidence of the scienter, but the only question is, whether it is evidence of it. I think it is.” This case was referred to and commented upon in Goode vs. Martin, 57 Md., 610, 611 . And in the case of Stiles vs. Cardiff Steam Nav. Co., 33 L. J., (Q. B.) 319, where a similar question arose, the Lord Chief Justice ■said that notice of the vicious propensity of the dog given to porters or servants employed about the premises, would not suffice ; but thatj if brought home to a person who had *388 the general management of the yard, in which the defendants themselves could not he supposed to he acting, and who had authority to say whether a dog should he kept there or not, or whether it should he chained up or not, it would he otherwise. The case of Baldwin vs. Casella, L. R., 7 Exch., 325, proceeded upon the ground that the defendant had deputed to his coachman the care and control of the dog, and therefore a notice to him of the vicious nature or propensity of the dog was notice to the master. And there is nothing in the case of Appleby vs. Percy, L. R., 9 Com. P., 647, that in any way contravenes the principle of the previous cases, to which we have referred. We are clearly of opinion, therefore, upon the facts as stated in the hill of exception, that the knowledge, whatever it may have been, of the negro man in regard to the propensity of the dog was not legally imputable to the defendant; and especially were not the declarations of the negro man evidence against the defendant. The man himself should have been called as a witness.

Of the several prayers offered by the plaintiffs, those granted would seem to have given the plaintiffs the benefit of all the law to which they were entitled, and that too in a most liberal form; and those rejected were clearly erroneous, and therefore properly rejected. The fourth and fifth prayers, rejected by the Court, appeared to have been based entirely upon the evidence that was-offered, but which was excluded by the Court, upon objection. The evidence not being before the jury, of course it could not be made the basis of an instruction to them. Besides, those prayers did not even require the jury to find that the vicious disposition of the dog was to attack aud injure mankind; but simply that the dog was of vicious or dangerous propensities. This alone was a defect which made them misleading, and therefore required their rejection. Judge vs. Cox, 1 Stark., 285; Wood on the Law of Nuis., sec. 761.

*389 The seventh prayer asked the Court to say that there was no sufficient evidence, to be submitted to the jury, of ■any contributory negligence on the part of the female plaintiff, in bringing about the injury complained of, to ■defeat the right to recover. This prayer was properly rejected. For although the evidence is manifestly very meagrely and defectively set out in the record, as to the precise circumstances of the injury, yet it is stated in a general way, that evidence was given “tending to prove that the plaintiff, Mary, knew the said dog, and knew that he was a dog liable to attack persons, and was of a fierce disposition, and that she had encouraged the dog to he in .and about her premises prior to said injuries.” If she had cultivated a familiarity with the dog, and encouraged him to come to her house and be about her, withknowledge of his disposition, it was certainly evidence to go to the .jury upon the subject of contributory negligence on her part, and the Court was therefore right in refusing the prayer.

The first prayer on the part of the defendant, which was granted, we do not understand to be seriously questioned. But the third and fourth of the prayers of the ■defendant, which were granted by the Court, are questioned by the plaintiffs. The third prayer sought to preclude the right to recover upon the ground of contributory negligence on the part of the female plaintiff Mary, and if the facts therein enumerated were found by the jury, they certainly constituted a good ground of defence. Cooley on Torts, 346.

.In granting the fourth prayer the jury were instructed, that if they found that the dog committing the injury did not belong to the defendant, but was at the time the exclusive property of the defendant’s son, a young man over twenty-one years of age, and that the latter “had sole charge, custody and control of said dog, and that the defendant never had the custody, care or control of said dog; *390 and that the injury complained of occurred off the premises of the defendant, and upon the premises of the plaintiff, Mary E., a half mile away,” then the defendant was not liable; although the jury might “find that the defendant allowed said dog to be kept by his son on or about his premises.” This instruction, we think, unobjectionable. The defendant, to he liable for the vicious conduct of the dog, must have been either owner or keeper of- the animal, or had some control of him. If he was neither owner nor keeper, and had no control of the dog, and the injury was done away from his premises, and out of his presence, it is difficult to perceive upon what principle he could be held liable. In the case of Auchmuty vs. Ham, 1 Denio, 495 , where the damage was done by the dog away from the premises of the defendant, it was held not to he sufficient to render the defendant liable that the dog belonged to the defendant’s hired man servant, who kept the dog at the defendant’s house during the day, hut took him away at night. The principle of that case would seem to apply fully to this, and he an authority for granting the fourth prayer of the defendant, if any authority were needed.

(Decided 19th June, 1884.)

Finding no error in the rulings of the Court below, we must affirm the judgment.

Judgment affirmed.