Chunot v. Larson

43 Wis. 536

• Court: Wisconsin Supreme Court
• Decided: January 15, 1878
• Status: Published

Opinion

Cole, J.

I. Says Dixon, C. J., in O’Conner v. Hartford Fire Ins. Co., 31 Wis., 160-166: “It is well settled in this state that the wife, having acted as the agent of the husband, is a competent witness for him to prove any act done by her or fact transpiring within the scope of such agency.” See further the cases in the note to Birdsall v. Dunn, 16 Wis., 236 (V. & B.’s ed.), where the cases upon this subject are collected. In the case before ns, when Mrs. Cbunot was offered as a witness, her testimony was objected to on the ground that she wras the wife of the plaintiff. The objection was a general one to her competency. Sbe was certainly a competent witness for the plaintiff to prove any matter within the scope of her agency, under the rule established in this state. If any questions were asked ber wbicb did not relate to a matter fairly within the scope of her agency, upon objection, they doubtless would have been ruled out. For when she was recalled to rebut the testimony of the defendant, a question was asked her as to a conversation she bad had with him, which, upon objection, was excluded. This was the only specific objection taken to any question asked her on her examination. That she was an agent for her husband within the rule is very apparent from the plaintiff’s testimony. He testified that when be went from home to be gone three months, be left the farm and everything on the same, including the stock and the cow which was killed, in charge of bis wife, with directions for her to take care of everything in the same manner as be would if at home. This shows an express delegation of authority to the wife to take care of the cow, and she could testify to anything done by her in the execution of her agency.' Upon obvious grounds the case is distinguishable from Meek v. Pierce, 19 Wis., 300, where there was no authority, express or implied, given the wife by the husband, which would make her acts binding upon him. The case seems to come fully within the decision of O'Conner v. Hartford Fire Ins. Co., supra, and kindred cases.

II. We can see no substantial objection to the questions which were asked the witness Cherrywinker. The testimony elicited tended to prove that the fence around the yard where the cow was confined, was sufficient to keep her within the inclosure, and also related to the character of the dog. Each question in some aspects of the case would be proper, and might call forth material evidence.

III. The general charge of the court was very favorable to the defendant, and no exception was taken to it. But exceptions were taken to the following instructions given at the request of the plaintiff:

“ 1st. In this case the complaint is for a trespass'in wrongfully breaking and entering the plaintiff’s close by the defendant’s dog. The killing of plaintiff’s cow by defendant’s dog while thus in the plaintiff’s close is alleged in aggravation of the trespass. ^The owner of the dog is not in general liable for an injury committed by such animals, unless it be alleged and shown that such owner had notice of the vicious propensity of the dog. ^Notliwithstanding this general rule, however, if it is shown that such dog is unlawfully in the close of another, and commits the mischief complained of there and while so unlawfully in such close, the owner is liable without alleging or proving that he had previous notice of the vicious propensities of the animal/''"

“ 2d. So, in this case, if you find from the evidence that, without any fault on the part of the plaintiff in enticing the dog there, the defendant’s dog unlawfully and wrongfully broke and entered the plaintiff’s close, and, while thus in said close, killed plaintiff’s cow, or there bit or injured plaintiff’s cow so that the cow afterwards died from the effects of such injuries, you will find for the plaintiff, and assess his damages at such sum as the evidence shows to be the value of the cow.”

The complaint states, in substance, that the defendant wrongfully kept and owned a dog accustomed to chase, bite, worry and kill cows and other domestic animals; alleges a scienter, and that said dog, on etc., at etc., “wrongfully and' forcibly broke and entered the close of the plaintiff there situated, and did then and there, in said close, wrongfully hunt, chase, bite, worry, mangle and kill a certain cow of the plaintiff, of the value,” etc. It will be noticed that, while there is an allegation of the vicious propensities of the dog and the defendant's knowledge thereof, still there is the further averment that the dog broke into the plaintiff’s close and committed the injury complained of. Now, if the allegation as to breaking the close and killing the cow there was proven, could not the plaintiff recover, though he did not show that the defendant knew the dog was accustomed to bite and kill domestic animals? It seems to us, under the authorities, that there could be a recovery in such a case. See Beckwith v. Shordike, 4 Burr., 2093; Angus v. Radin, 5 N. J. Law, 815; Dolph v. Ferris, 7 W. & S., 367; Lyke v. Van Leuven, 4 Denio, 127; S. C., in court of appeals, 1 N. Y., 515; Decker v. Gammon, 44 Me., 322, and authorities referred to in the opinions. The ground of liability rests upon a breach of the close, and the killing of the cow is alleged by way of aggravation of damages. The dog being a trespasser in the place where the injury was committed, the defendant was bound to make full compensation for the whole injury which he did, whether he had previous knowledge of the vicious propensity of the dog or not. This is the doctrine laid down or recognized in the above authorities. The fact that knowledge on his part was alleged in.the first part of the complaint, did not vitiate the allegation as to the trespass gucvre clausum, or impose upon the plaintiff the burden of proving a scienter. Utile per inutile non vitiatur, is a maxim which may be applied to the complaint. So that, while the plaintiff alleged more than was necessary to state a cause of action, yet this does not prevent him from recovering upon the cause of action which he actually established by his proof. He was not bound to prove the complaint to the extent alleged.

There was no error in giving the above instructions, or in refusing to grant a new trial under the circumstances. The judgment of the circuit court must be affirmed.

ByaN, C. J.

I am not satisfied that this judgment is correct, and therefore withhold my assent. I confess, however, that I have not had leisure to examine the question involved with sufficient care to form a positive judgment. The particular case does not appear to be of much consequence. But the principle on which the judgment rests is far reaching, and may involve the court in difficulties not sufficiently considered in passing upon the case.

There is a distinction in the boohs, in responsibility for animals ferae naturae, and for animals mansuetce naturae. Generally, I think, the liability of the owner for injuries caused by an animal escaping without his fault, is limited by the natural habits of the animal. The rule is perhaps different when an animal escapes by the culpable negligence of the owner.

When an animal mansuetce natu/rm becomes mischievous or destructive outside of its nature, it is held as ferae natures. But the like liability of the owner for it attaches only upon notice of its vice. Lyke v. Van Leuven, 4 Denio, 127.

“ There is a difference between beasts that ar & ferae naturae, as lions and tigers, which a man must always keep chained up at his peril, and beasts that are mansuetce naturae, and break through the ordinary tameness of their nature, such as oxen and horses. In the latter case, an action lies only if the owner has had notice of the mischievous nature of the beast. In the former case an action lies without such notice.” Addison on Torts, 191.

All the cases treat the dog, against the authority of Dr. Watts, as mansuetas natwee until he becomes vicious to his owner’s knowledge. As an English judge is reported to have lately said, the law allows a dog his first bite. 17 Alb. L. J., 196.

Property in a dog is of peculiar character. “ A man is not, by the common law, considered to have the same valuable property in a dog as in cattle and sheep; and it has been held that if a man’s dog goes into his neighbor’s garden, and spoils and injures his crops, no action will lie, unless the dog is of a peculiarly mischievous disposition, so as to be unfit to be at large, and this is known to the master.” Addison on Torts, 267. It would thus seem that the common law vests in a reputable dog the right of going and coming where he listeth, without charging his master for trespass.

This view of a dog’s license appears to be quite old. “ There is a great difference between horses and oxen, in which a man has a valuable property, and which are not so familiar to mankind, and dogs; the former the owner ought to confine, and take all reasonable caution that they do no mischief, otherwise an action will lie against him; but otherwise of dogs, before he has notice of some mischievous quality. But in the former case, if the owner puts a horse or an ox to grass in his field, which is adjoining to the highway, and the horse or the ox breaks the hedge, and runs into the highway, and kicks or gores some passenger, an action will not lie against the owner; otherwise, if he had notice that they had done such a thing before. Now, for anything that appears to the contrary, the owner might not have had this dog but one day or two before, and did not know of this fierce nature; and then the dog, because the door was left open, ran out and bit the plaintiff; it will be very hard to subject this defendant, the owner, to an action for it. Otherwise, if the defendant had known before that this dog was of such a fierce nature, for he ought to have kept him in at his peril.” Holt, C. J., and Turton, J., in Mason v. Keeling, 1 Ld. Raymond, 606. “ The law does not oblige the owner to keep the dog in his house; for if the dog break a neighbor’s close, the owner will not be subject to an action for it.” Holt, C. J., in the same case.

Dearth v. Baker, 22 Wis., 73; Kertschacke v. Ludwig, 28 id., 430, and Slinger v. Henneman, 38 id., 504, do not indeed sanction this view to its full length, but are quite in accord with it as far as they go. And Meibus v. Dodge, 38 Wis., 300, is not in conflict with it. The latter case turned altogether upon the defendant’s knowledge of the ferocious disposition of his dog. I took no part in that case, having been absent. But I heard the opinion read before it was filed, and expressed doubts of its correctness. I was inclined to think that the plaintiff there was guilty of contributory negligence; indeed that, as between him and the dog, he was the trespasser. In that case, as in this, I was disposed to lean in favor of the dog.

I am of course not unaware that many cases take a different view; and that there was at common law some subtlety and conflict of decision on the question, whether and when the remedy was in case or in trespass. Indeed, there may be almost as much difficulty in finding a fixed rule in canine law as in canine Latin. But without further opportunity of investigation, I prefer my view to that followed in the opinion of the court.

The complaint in this case was in trespass guare clausum fregit. Negligence of the appellant was not averred. But the vicious nature of the dog and the scienter were averred. And on the authority of Dearth v. Baker, as well as on principle, I incline to the opinion that these were essential averments; that the general charge of the learned judge of the court below correctly stated the law; and that his first instruction given on the respondent’s request was erroneous. .

As already seen, the law in relation to dogs is, in some respects, distinguishable from that in relation to other domestic animals. This distinction is not recognized in the opinion of the court in this case; and the rule of the owner’s full responsibility for all injuries by trespassing animals, whether within or without their natural habits, is not apparently limited to any class of animals. The opinion does not notice the distinction between animals ferae naturae and animals mansuetae naturae; between domestic animals with vicious habits, and domestic animals without vicious habits. It appears to hold persons as liable for all actual damages by accidental trespass of their animals, as for like personal trespass. I am afraid that this is not quite in accord with some judgments of this court, and may prove troublesome. For instance, such a rule has never been recognized in cases arising from trespass of animals on railroads. Doubtless the owner of a horse or an ox trespassing on a railroad, without fault of the company, would be liable to it for grass, beside the track, eaten or trodden down by the animal; for these injuries would be within its nature. But if a domestic animal, contrary to its nature, should attack a railroad train and wreck it, the owner’s liability would be a very grave question. If such a case should arise, the judgment in this might trouble the court.

By the Court. —The judgment of the circuit court is. affirmed.