§ 178. Harborer of dangerous animal responsible for damage, when.-One who harbors a dangerous animal on his premises, though he be not its owner, is responsible for injuries committed by it while in his possession to the same extent as if he owned it. But if a person finds upon his premises an animal which he knows to be vicious, and he, in good faith, attempts, but fails, to drive him away, he is not liable.2

In the text-books and reports of cases, the "owner" of the animal is designated as the person who shall be liable for damages caused by a vicious animal; but it should not be understood that, in all cases, this liability falls upon him who is the legal owner of the animal, or that he is the only person thus to be held responsible.

The owner of an animal, within the meaning of the rule, is the person who has the control of it, or whose duty it is to have such control. The owner is presumptively the person who should have the control of the animal; and from this arises a corresponding presumption of his liability. This may, however, be rebutted by a showing that he has not such control, or duty of control, and the responsibility is avoided by him if he can establish that fact.

§ 179. Liability ceases when vicious animal is stolen. -If the animal be stolen from the owner, or taken in replevin, or other claim of title which proves ultimately to have been without foundation, the person thus taking it, and not the real owner, becomes liable for damage done while thus removed from the owner's possession.

Where an animal is hired out, or even if it is simply lent, and the hirer or borrower has exclusive control over it, he, and not the ultimate owner, is liable.

But, with these exceptions, it may be taken as the law that

1 Wilkinson v. Parrott, 32 Cal. 102; Frammel v. Little, 16 Ind. 251.

2 Smith v. Great Eastern R. R. Co. 2 Law Rep. C. P. p. 4. The plaintiff was bitten by a stray dog, at a railway station, while waiting for a train. It was proved that at 9 A.M. the dog flew at and tore the dress of another female on the platform; that at 10:30 he attacked a cat in the signal-box, near the station, when the porter there kicked him out, and saw no more of him; and that he made his appearance again, at 10:40, on the platform, where he bit the plaintiff. Held, no evidence to warrant the jury in finding that the company had been guilty of any negligence in keeping the station reasonably safe for passengers.

the party injured by a vicious animal may recover his damages from either the actual owner or the person having it in charge, where he can show that such owner or person in charge was aware of the evil propensities or dangerous character of the animal.1

§ 180. In sale of dangerous animal, notice must be given. As to what notice of the vicious propensities of an animal hired out or loaned, the bailor must give to the bailee, in order to shift from the owner to the temporary possessor the responsibility for the acts of a dangerous animal, necessarily, in this connection, becomes an important question.

Manifestly, where the possession is taken from the owner feloniously, or in any way against his will, he cannot be held. liable for failure to convey the information that the animal is dangerous, and must be guarded to prevent him from doing injury; but it is the duty of the owner to communicate his knowledge upon this point to any person borrowing or hiring the animal. The duty is not alone to the bailee, but there is a responsibility to the public which must rest upon one or the other; primarily, this responsibility is imposed upon and accepted by the owner of a dangerous animal, who permits it to live, and he can only shift the burden of it by informing him upon whom he would put it off, of the risks he takes, so that he may elect whether or not to assume them.2 A lender is bound to inform the borrower of any defects. in the thing lent of which he is aware, which render it dangerous to the borrower; the obligation of a mere lender goes no further than this. He cannot be made liable for not communicating any thing which he did not in fact know, whether he ought to have known it or not.

One who lets a chattel upon hire is under greater obligations in this respect than a mere lender; in the former case he warrants the thing hired to be fit for the use contemplated, and therefore warrants it against vices of which he ought to be aware.3

1 Marsh v. Jones, 21 Vt. 378; Pickering v. Orange, 2 III. 492.

2 Story on Bailments, Sec. 275; Blakemore v. Bristol R. R. Co. 8 El. & Bl. 1035. McCarthy v. Young, 6 Hurlst & N. 329; Story on Bailments, Secs. 383, 390, 391a. FARM-16.

§ 181. Liability of joint owners of dangerous animals. -Joint owners of a vicious animal are each bound to restrain him; if he is not restrained, and one owner is sued and compelled to pay damages for an injury done by him, such owner cannot enforce a claim for contribution against the co-owner. The case is within the rule that there is no right to contribution between wrong-doers; and to show that, at the time of the injury, the animal was in the possession of the defendant, does not take the case out of the general rule. To constitute it an exception, the evidence must show an express undertaking on his part to indemnify his fellow-owner against any injury by the animal, or some circumstances from which such undertaking or obligation may be implied.1

1 Moody v. Black, 1 Sandf. 304; Hawkins v. Applebee, 2 Sandf. 421. Spaulding v. Wm. E. Oakes, 42 Vt. 343. The plaintiff and defendant were the owners in common of a ram, which both parties knew to be vicious and liable to attack persons. The animal was kept for the separate use of both, each having the immediate charge of him from time to time, as occasion required.

At a time when the ram was so in possession and charge of defendant, one Mrs. Oakes, wife of Henry Oakes, while driving home her cows, was violently attacked by the ram, and injured.

Mrs. Oakes and her husband brought suit against the plaintiff in this action for the damages sustained by her; to this suit, the defendant in that, plaintiff in this, action, made defense of the general issue, and especially that, notwithstanding he was a co-owner, the ram, when he made the assault, was not subject to his control, but was in the possession of his co-owner, Wm. E. Oakes; that he was being kept by Wm. E. Oakes in his pasture, over which he, Spaulding, had no control, and in which he was not interested.

The cause was ably tried, and carried to the Supreme Court; Spaulding was held liable for the damage done. (Henry Oakes and Wife v. Spaulding et al. 40 Vt. 347.) The decision being that "a joint-owner of a ram is chargeable with damage done by it, by butting, while in the pasture of his co-owner, although the latter, of his own accord, and without permission of, or consultation with, the former, and in his absence, took the ram, and put it into his pasture, where the injury was done, without trying to restrain it, the former having given no directions as to restraining the ram, and not having been consulted as to the keeping, care, and management of it."

Thereupon, being compelled so to do, the defendant, Spaulding, paid a large portion of the judgment, nearly all of the costs and expenses of counsel, fees, etc., and brought this action for contribution.

The Court held that, under the circumstances, there could be no contribution; that "the plaintiff and the defendant were the owners in common of a vicious ram, and his vicious propensities were known to both parties. The animal was kept for the separate use of both, each having the immediate charge of him from time to time, as occasion required. At the time the ram did the injury, for which both were liable, he was kept by the defendant on his farm, with the knowledge and assent of plaintiff, although the plaintiff did not know of the defendant's taking him at the time when he was taken. The plaintiff knew

§ 182. The measure of damages for injuries by vicious animals is controlled by the general rules upon that subject. Actual loss is the measure in tort where no circumstances of aggravation are shown, and where the injury is done to property the rule of compensation can readily be applied; injuries to the person are, however, more difficult to estimate, and the jury cannot always be held to the strict line of compensation which makes good an actual loss.

In regard to personal trespasses generally, they are so frequently accompanied by circumstances of aggravation that the question of strict compensation is rarely raised. The damages for personal injury, in cases free from malice, or of simple negligence, where the rule seems to be the same, should, as far as a money standard is applicable, be such as to compensate the injured party for such loss of time, medical and other expenses, physical pain, and medical distress, as are fairly and reasonably the plain consequences to him of the injury.2

Remote or as they are sometimes styled-consequential damages are not to be regarded, as the law prohibits any allowance for damages remotely resulting from the principal illegal act, or, in the language of Lord Bacon: "It were infinite for the law to judge the causes of causes, and their impulsion one on another. Therefore, it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree." 3

the defendant did not restrain the ram, and took no steps to do so himself. While being so kept by defendant, the ram, in consequence of not being properly restrained, inflicted said injury."

Held, that the parties come within the general rule of wrong-doers, between whom there can be no contribution or indemnity.

1

Sedgwick on the Measure of Damages, 5th Ed. 516, 586, 602.

2 Seger v. Bark Hamstead, 32 Conn. 290; Peoria Bridge Association v. Loomis, 2011. 235; Masters v. Town of Warren, 27 Conn. 293; Lawrence v. Housatonic R. R. Co. 29 Conn. 390; Mason v. Town of Ellsworth, 32 Me. 271; Hunt v. Hoyt, 20 Ill. 544; Morse v. Auburn & Syracuse R. R. Co. 10 Barb. 621; Ransom v. N. Y. & Erie R. R. Co. 15 N. Y. 415; West v. Forrest, 22 Mo. 344. If the injury be permanent, compensation should be given for the future as well as for the present disability. (Frink r. Schroyer, 18 Ill. 416; Slater v. Rink, 18 Ill. 527.)

* In determining the item of compensation for personal injury, the profits of a future business, of which plaintiff has been deprived, are, in general, too remote as an element in the estimate of the damages. (Ballou v. Farnum, 11 Allen, 73; Caldwell v. Murphy, 1 Duer, 233; Graber v. Darwin, 43 Cal. 495; Sedgwick on Measure of Damages, p. 56.)

§ 183. The right to kill dangerous animals, in order to protect human life, cannot be questioned; but how far this right extends, in the matter of the protection of property alone, is a matter worthy of consideration.

A dog may be so ferocious as to become a public nuisance; and in such cases, if his owner permits him to run at large, any person may kill him. Public safety and convenience justify such a rule of law. The animal ceases to be reclaimed and domesticated; he is dangerous; is, in effect, a wild beast, and may be slain, independent of statute authority, and without regard to whether he was doing mischief at the time, or the question of whether his owner knew of his vicious disposition.1

But this reasoning appears to be applicable to dogs alone, and there has always been esteemed to exist a marked distinction against them in connection with other domesticated animals.

Although the common law recognizes property in the dog, it has always been esteemed a base property, and entitled to less consideration and protection than property in other domestic animals.2

Other animals may become vicious and injure persons or property, and the injured party may have his action for damages,

Karr v. Parks, 44 Cal. 46. In this case, the plaintiff sued to recover for services rendered and expenses incurred in the cure of wounds inflicted upon his infant daughter by a vicious cow, which belonged to defendant; the jury awarded damages in the sum of $3,262. The child, after the injury, had proper medical and surgical treatment, and recovered, but there remained an eversion of the lower eye-lid, which was an unseemly disfigurement of the face. The larger portion of the expense, of which plaintiff gave evidence, and for which he sought to recover, was incurred in the endeavor to remove this disfigurement. For this purpose the child was taken to San Francisco, and two surgical operations were performed, the first being a failure, the second partially successful; the amount of the verdict rendered it certain that the expenses attending these operations entered largely into their estimate of damages.

The judgment was reversed, on the ground that the evidence should have been excluded, on defendant's objection to it, as the damages sought to be proved, viz., the expenses of these two surgical experiments, after the general recovery of the child, were too remote; that "there would practically be no limit to the liability of the defendant if the father could pursue, at pleasure, a series of expensive surgical operations, for the purpose of removing every trace of the injury, and charge the defendant with the entire cost."

1 Leonard v. Wilkins, 9 Johns. 233; Hinkley v. Emerson, 4 Cow. 351; King v. Kline, 6 Penn. St. 318; Woolf v. Chalker, 31 Conn. 121; Putnam . Payne, 13 Johns. 312; Maxwell v. Palmerston, 21 Wend. 407; Brown v. Carpenter, 26 Vt. 638; People v. Board of Police, 24 How. Pr. 481; Brown v. Hoburger, 52 Barb. 15. 2 Woolf v. Chalker, 31 Conn. 121.