Holt v. Myers

93 N.E. 31, 47 Ind. App. 118, 1910 Ind. App. LEXIS 6

• Court: Indiana Court of Appeals
• Decided: November 29, 1910
• Docket: No. 7,096
• Status: Published

Opinions

Comstock, J.

— Appellee sued appellant to recover damages for injuries alleged to. have been inflicted upon him by a vicious dog owned by appellant. The cause was put at issue by a general denial to the amended complaint. The jury returned a verdict in favor of appellee for $300. Appellant filed his motion for a new trial, which was overruled upon appellee’s remitting $150 of the verdict and judgment rendered against appellant for $150 and costs.

The only error relied upon for reversal is the action of the court in overruling appellant’s motion for a new trial; and of the reasons therefor, only the one, that the court erred in giving instructions nine, eleven and twelve, of its own motion, is discussed.

We set out such part of said instructions as will make clear appellant’s claim. Said ninth instruction reads: “Before the plaintiff is entitled to recover, the evidence must show by a fair preponderance, that the defendant kept a vicious dog at his place, which he permitted to run at large, and on the public highway near his place and that he knew or should have known by the exercise of reasonable care that said dog was vicious and likely to attack and injure persons while passing along the public highway,” etc. Said eleventh instruction reads: “If you find from a preponderance of-all the evidence that the defendant kept a dog which had a propensity to bite mankind and which fact was known to the defendant or should have been known by the exercise of reasonable care, then it was his duty to keep said dog confined and if he failed to do so, and through such failure plaintiff was damaged then you should find for plaintiff,” etc. The twelfth reads: “The burden of proof is upon the plaintiff to prove to your satisfaction by a fair preponderance of the evidence that the defendant knew or should have known by the exercise of reasonable care that the dog alleged to have injured plaintiff had bitten or attacked others prior to the time,” etc. The words italicised constitute the alleged error.

It is claimed that the court erred in each’of these instructions, as placing upon the appellant a greater degree of care than the law requires; that they charge him with constructive notice of acts committed by his dog. In other words, the instructions complained of put upon appellant a continuing duty of watchfulness over his dog, equivalent to the duty of inspection on the part of a master to his servant. It is also the claim of appellant that the vicious character, propensities or acts of the dog must be brought to the knowledge of the owner.

1. No attempt is shown to make the evidence a part of the record. Where the evidence is not in the record, a judgment will not be reversed for an instruction given which would be proper under any state of facts provable under the issues. Abney v. Indiana Union Traction Co. (1908), 41 Ind. App. 53.

2. The person who keeps a vicious dog, with knowledge of its vicious disposition, is liable to any person injured by the animal without his fault; and in an action to recover for such injury it is not necessary to allege or prove any negligence by defendant in securing or taking care of the animal. The failure to secure the animal known to be dangerous renders the keeper liable for injuries caused by the animal to one not at fault, the cause being treated as an action for negligence. Gordon v. Kaufman (1909), 44 Ind. App. 603; Partlow v. Haggarty (1871), 35 Ind. 178; Williams v. Moray (1881), 74 Ind. 25, 39 Am. Rep. 76.

3. It was competent to show that appellant had actual knowledge of the dangerous propensities of his dog, and, in the absence of the evidence, it will be presumed that this was done. If the evidence showed that appellant had actual knowledge of the dangerous character of his dog, tlie instructions relating to constructive notice would have been harmless.

Judgment affirmed.