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§ 175.

§ 176.

§ 177.

CHAPTER XVI.

DANGEROUS ANIMALS.

Scienter, common-law rule as to.
Owner liable for dainage by vicious animal.
Negligence in guarding dangerous animal.
§ 178. Harborer of dangerous animal, liability of.
$179. Liability ceases when vicious animal is stolen.
§ 180. On sale of dangerous animal, notice must be given.
Joint owners of dangerous animal, their liability.
Measure of damages for injuries by vicious animals.
§ 183. The right to keep animals which are dangerous.

§ 181.

§ 182.

§ 175. Common-law rule as to scienter.-Injury by dangerous beasts of the several species known as domestic animals, which resulted from carelessness in keeping them, rendered the owners responsible, under the common law, in damages, where it was shown that the owner was aware that they were dangerous; and, where damages were claimed by reason of domestic animals acting in a vicious manner, it was essential to a recovery that the complainant should allege and prove that the owner of the beast knew of its vicious propensities, and so negligently kept it, that, by reason of the carelessness of the owner or keeper, the vicious propensity had an opportunity to manifest itself, to the damage of him who claimed to have been injured.

But, it having been shown that the animal was dangerous, and that of the fact that it was so the owner was aware, then the rule was that the beast should be killed, or kept in restraint, in order that the more valuable lives of and their proppersons erty might have due protection; and if, from carelessness in keeping a vicious beast, or wantonness in leaving it at large, human life is lost, the owner of the animal is liable to criminal prosecution and punishment for manslaughter or murder.1

1 Smith v. Pelah, 2 Strange, 1264, in which "the chief justice ruled that if a dog has once bitten a man, and the owner, having notice thereof, keeps the dog, and lets him go about or lie at his door, an action will lie against him at the suit of the person who is bitten, though it happen by such person's treading on the

§ 176. Owner liable for damage by vicious animal, when. In the United States, the owner of a beast known to be dangerous is liable to damage done by it, where such damage

dog's toes; for it was owing to his not hanging the dog on the first notice; and the safety of the king's subjects ought not afterward to be endangered. The scienter is the gist of the action."

A case is cited in an American report to the same point (see Smith v. Causey, 22 Ala. 571; Beck and Wife v. Dyson, 4 Campb. 198); but it does not seem to be wholly consistent therewith.

"It was a case for keeping a dog which bit the plaintiff, Mrs. Beck. She had been dreadfully bitten and lacerated by this dog, and the question was whether there was sufficient evidence of his being accustomed to bite, and of its being known to the defendant.

"It was proved that the dog was of a fierce and savage disposition, that the defendant generally kept him tied up, and that Mrs. Beck, having been bitten by him, the defendant promised to make her a pecuniary recompense; but there was no proof of his having before bitten any other person.

"It was submitted, that, from these circumstances, the jury would be warranted in inferring that the dog was accustomed to bite within the knowledge of the defendant; but Lord Ellenborough held the evidence insufficient, and directed a nonsuit."

In Buxendin v. Sharp, 2 Salk. 661, "the plaintiff declared that the defendant kept a bull that used to run at men, but did not say sciens or scienter, etc. This rule was held naught after verdict, for the action lies not, unless the master knows of this quality; and we cannot intend it was proved at the trial, for the plaintiff need not prove more than is in his declaration."

In Jenkins v. Turner, 1 Ld. Raym. 109, a boar had set upon, bitten, and injured a mare. It was charged that the owner knew of its being an animal of vicious disposition, and dangerous. On the trial, it was shown that the boar had bitten a child; that the owner knew that fact, and still allowed the boar to run at large. Although it was argued that the knowledge that the hog would bite children did not constitute information that it would injure mares, the Court held that the scienter was sufficiently shown, and the owner of the offending animal liable.

In Rex v. Huggins, 2 Ld. Raym. 1583, it was said by the Court: "There are, indeed, cases of murder, where no act was done by the persons guilty; as the letting loose of a wild beast which the party knows to be mischievous, and he kills a man, the owner of the beast is guilty of murder. There is a difference between beasts which are fera natura, as lions and tigers, which a man must always keep at his peril, and beasts that are mansuetæ natura, and break through the tameness of their nature, such as oxen and horses. In the latter case, an action lies, if the owner has had notice of the quality of the beast; in the former case, an action lies without such notice.

As to the point of felony, if the owner has notice of the mischievous quality of the ox, and he uses all proper diligence to keep him up, and he happens to break loose, and kills a man, it would be very hard to make a man guilty of felony.

But if, through negligence, the beast goes abroad, after warning or notice of his condition, it is the opinion of Hale that it is manslaughter in the owner.

"And if he did purposely let him loose, and wander abroad, with a design to do mischief; nay, though it were but with a design to frighten people, and make sport, and he kills a man, it is murder in the owner."

is the result of want of due care on the part of the owner properly to guard his animal from doing injury; and the measure of care imposed is commensurate to the risk of danger to the public from the vicious propensity of the beast.

In America, the common-law rulings have been generaly followed, and the decisions of the American Courts have been in accordance therewith. The application of the principle involved has been the principal matter considered in this connection, and incidentally thereto the question has arisen as to which is responsible for damage done by a vicious beast, the owner, or he who has the custody of it.

The owner of a vicious animal is an insurer against all harm which might reasonably be expected to result from the propensity of his animal to do damage;1 but this insurance cannot be

1 McCaskill v. Elliott, 5 Strobh. S. C. 196; Woolf v. Chalker, 31 Conn. 122; Stumps v. Kelly, 22 Ill. 140. This was an action on the case for injuries by a cow having hooked a woman, and caused great suffering, injury, expense of cure, and loss of time. The language of the Court, by Walker, J., is: "One person has no right, in the exercise of a trade or business, to endanger the life or health of another, nor by so doing to inflict an injury upon the person or property of another, while pursuing his lawful avocations.

"While the appellant has the undoubted right to hold and enjoy the property, the appellee has the right to pass the public highway without being injured by the property of the appellant. And appellant, failing to restrain this animal, after knowing its propensity to hook persons, is liable to injuries that may result to persons by her running at large. But if the ox were wont to push with his horns in times past, and it hath been testified to his owner, and he hath not kept him in, but that he hath killed a man or a woman, the ox shall be stoned and his owner shall be put to death.'

"When it is thus commanded by the great Jehovah, when he made his law known to man in the midst of thunders and lightnings, and the deep cloud that enveloped Sinai, attesting His visible presence, we have no right to disregard the principles of divine justice thus announced.

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"The principle contained in the revelation applies with full force to a case resulting only in an injury, and unquestionably requires that it shall be compensated by payment of damages by the owner of the animal to the person injured. 'By the law of the twelve tables, it was provided that if a horse, apt to kick, should strike with his foot, or if an ox, accustomed to gore, should wound any man with his horns, an action was given to the party injured.' (Cooper's Inst. 357.) And by the common law, the owner of domestic or other animals, not naturally inclined to commit mischief, as dogs, horses, and oxen, is not liable for any injury committed by them to persons or to property, unless it can be shown that he previously had notice of the animal's mischievous propensities, or that the injury was attributable to some other neglect on his part; it being generally necessary, in an action for an injury committed by such animals, to allege and prove the scienter. (1Ch. Plead. 82.) But, with the notice of the vicious propensity of the animal, the action must be case and not trespass. Thus it is seen that the principle of responsibility by an owner of an animal

regarded as absolute; a man may keep an animal which is dangerous, provided he keeps him under restraint, so that persons pursuing their ordinary or lawful avocations are not exposed to danger.1 The general rule by which this liability is to be ascertained is: 1st. The absolutely vicious character of the animal; 2d. The knowledge, on the part of the owner, of the fact that danger might reasonably be apprehended from his animal being at large.2

§ 177. Negligence in guarding dangerous animals.-Ordinary care in guarding animals, which, from their sex or nature, may be vicious, is a duty which the citizen owes to the community, and which he neglects at his peril.

accustomed to commit injury upon mankind, and knowing its vicious propensities, is imposed for all injuries it may inflict, and is recognized by the divine, and the civil, as well as the common law." (Goodman v. Gay, 15 Penn. 188; Dickson v. McCoy, 39 N. Y. 451; Popplewell v. Pierce, 10 Cush, [Mass.] 509; Kittredge v. Elliott, 16 N. H. 77; Wheeler v. Brant, 23 Barb. 324; Koney v. Ward, 36 How. P. R. 255; Marsh v. Jones, 21 Vt. 278.) "Defendant, knowing the ferocious disposition of his dog, and that it had been accustomed to bite persons, and in particular that, when left guarding his team in a village street, it had attacked persons passing along the highway, afterward left it unsecured and unmuzzled, in or near his sleigh, near a village sidewalk, and a child of seven years, passing on the sidewalk, came to the sleigh and meddled with the whip lying therein, and was thereupon thrown down and bitten by the dog. Held, that plaintiff was liable for the injury, and the child's act in meddling with the whip was no defense." (Meibus v. Dodge, 38 Wis. 300; A. L. J. Feb. 19th, 1876, p. 133.)

1 Logue v. Linke, 4 E. D. Smith, (N. Y.) 63; Dearth v. Baker, 22 Wis. 73; Meredith v. Reed, 26 Ind. 334.

2 Vrooman v. Sawyer, 13 Johns. 339. "The defendant in error, who was plaintiff in the Court below, proved that the bull of the latter had gored his horse; but there was no evidence that the bull had ever before done similar acts, or that he had ever before been unruly. The justice gave judgment for the plaintiff below, the defendant in error.

"Per curiam.-The judgment is clearly wrong. If damage be done by any domestic animal, kept for convenience or use, the owner is not liable to action on the ground of negligence, without proof that he knew that the animal was accustomed to do mischief."

Lyke v. Van Leuven, 4 Denio, 128, which was a case where defendant's hogs had got into plaintiff's field and killed a cow and her newly born calf. The Court said: "There was sufficient evidence to warrant the jury in finding that the cow and calf were destroyed by the defendant's swine. But it was not shown that swine ordinarily have a propensity to attack and destroy animals in the condition of this cow and calf; nor was there any evidence that the defendants were aware of the vicious propensity, in this respect, of these swine. For these reasons the plaintiff wholly failed to show any right of action against the defendants.

"The scienter is the gist of the action in these cases, and the principle applies to swine as it does to other domestic animals." (Van Leuven v. Lyke, 1 Coms. [1 N. Y.] 515)

No man has the right to suffer to run at large animals of a kind dangerous either to the person or property of another; and if he does, he is responsible for all damages which result from the acts of such animals; he is bound to exercise ordinary care to prevent injury being done by them to the person or property of another.1

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The degree of care required to constitute "ordinary care depends upon the character and disposition of the animal, and the owner is liable for injuries done by an animal of the class mansueta natura only upon the ground of negligence, either actual or imputed by law, in view of the owner's having had express notice that the animal was individually of a mischievous disposition.2

1 Meredith v. Reed, 26 Ind. 334. The defendant owned a stallion, which, previously to the year in which the occurrences detailed transpired, had been let to mares, but he was not, in this year, so let, because of the illness of his owner. He was a gentle stallion, and had never been known by the owner to be guilty of any vicious acts. Not being in use, he had been kept up in a stable for four or five months. He was secured in the stable by a strong halter and chain, fastened through an iron ring in the manger. The stable door was securely fastened on the inside by a strong iron hasp, passed over a staple, and a piece of chain passed two or three times through the staple over the hasp, and the ends firmly tied together with a strong cord. It was also fastened on the outside by a piece of timber, one end of which was planted in the ground, while the other rested against the door. The horse was thus secured on the day and night the injury occurred. The gate of the inclosure surrounding the stable was shut and fastened as usual. About eleven o'clock that night the horse was found loose on the highway, and did the injury complained of.

Early the following morning the outside gate was found open, with the log prop lying some distance to one side, and the chain which had been passed through the staple was gone, and the cord with which it had been tied was found cut, and the pieces lying on the floor.

It is contended, on the one hand, that ordinary care was all the law required of the defendant in this case. On the other, it is claimed that the utmost care was necessary to free him from liability. Ordinary care is all that the law required. What is ordinary care in some cases would be carelessness in others. The law regards the circumstances of each case, and the nature of the animal or machinery under control. Greater care is required to be taken of a stallion than of a mare; so in the management of a steam engine greater care is necessary than in the use of a plow. Yet it is all ordinary care; such care as a prudent, careful man would take under like circumstances. The degree of care is always in proportion to the danger to be apprehended."

2 Earl v. Van Alstine, 8 Barb. 630; Shearman & Redfield on Negligence, Sec. 192; Fairchild v. Bentley, 30 Barb. 147. The defendant's horse having injured the plaintiff's mare by biting and kicking her, through the fence separating the plaintiff's land from the defendant's, held, that there was a trespass by the act of the defendant's horse, for which the defendants were liable, apart from any question on the part of the defendants. (Ellis v. The Loftus Iron Company, L. R. 10, C. P. 10.)

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