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