Owen v. Hampson

• Decision Date: 23 October 1952
• Docket Number: 7 Div. 143
• Parties: OWEN v. HAMPSON et al.
• Court: Alabama Supreme Court

Page 245

62 So.2d 245

258 Ala. 228

OWEN v. HAMPSON et al.

7 Div. 143.

Supreme Court of Alabama.

Oct. 23, 1952.

Rehearing Denied Dec. 18, 1952.

Young & Young, Anniston, for appellant.

Walter J. Merrill and Knox, Jones, Woolf & Merrill, Anniston, for appellees.

Count 2 of the complaint is as follows:

'This plaintiff claims of the defendants the sum of Fifty Thousand Dollars ($50,000.00) for that heretofore on to-wit, the 30th day of August, 1950, while plaintiff was driving his motorcycle on that certain public street in the City of Anniston, Calhoun County, Alabama, known as to-wit Forrest Lane, at or near its intersection with a public street known as, to-wit Kirkwood Avenue, a dog, owned, harbored or kept by the defendants was wrongfully in said street and ran at said motorcycle which plaintiff was then and there driving as aforesaid, and upset it, thereby throwing plaintiff therefrom, and as a proximate consequence thereof plaintiff was caused to sustain and did sustain the following injuries and damages: * * *

'Plaintiff avers that said street is a narrow, congested public street within the city limits of the City of Anniston, which is heavily travelled by speedy traffic, that the defendants had knowledge of the propensity of said dog [to] run after motor vehicles, and that the defendants should reasonably have anticipated that injury would result to persons travelling said public street by reason of the presence of said dog thereon.

'Plaintiff avers that the defendants negligently failed to keep said dog out of said public street and that as a proximate consequence of the defendants' negligence, plaintiff was injured and damaged as aforesaid; hence this suit.'

LAWSON, Justice.

The question on this appeal is the sufficiency of each of the seven counts of the complaint tested by demurrer. The trial court sustained the demurrer to each count. Plaintiff suffered a nonsuit and has appealed, as authorized by statute, § 819, Title 7, Code 1940, separately assigning as error the sustaining of the demurrer to each count.

Plaintiff seeks to recover damages for personal injuries which he alleged he sustained when a dog owned, harbored or kept by the defendants ran at and upset the motorcycle which he was riding in a public street in the city of Anniston.

As we understand the complaint, plaintiff bases his right to recover on two theories; namely, the alleged duty of the owner or keeper of a dog to keep it out of the public streets, and on the common-law liability of the owner or keeper of a dog with known vicious or mischievous propensities.

Counts 1, 4 and 5 charge no more than that the dog was wrongfully in a heavily travelled public street and that the defendants negligently failed to keep it out of the street. Count 7 is to the same effect, the difference being that it charges that the defendants wantonly failed to keep the dog out of the street. In none of these counts is it averred that the dog had vicious or mischievous propensities which were known by the defendants.

Ordinary dogs having no vicious or mischievous propensities are free commoners, which the owner or keeper is under no duty to keep out of the public streets in the absence of statute or ordinance so requiring. Shelby v. Seung, 144 Wash. 317, 257 P. 838; Melicker v. Sedlacek, 189 Iowa 946, 179 N.W. 197, 11 A.L.R. 259; Olson v. Pederson, 206 Minn. 415, 288 N.W. 856; Brown v. Moyer, 186 Iowa 1322, 171 N.W. 297; Herring v. Schlingler, Tex.Civ.App., 101 S.W.2d 394; 3 C.J.S. Animals, § 151, p. 1256. Merely alleging that the dog was unlawfully in the street is not tantamount to an allegation that it was there in violation of a statute or ordinance. Pelham v. Spears, 222 Ala. 365, 132 So. 886.

If the city of Anniston has an ordinance to the effect that the owner or keeper of a dog must keep it out of the public streets, the existence of such an ordinance is not alleged. We do not take judicial notice of ordinances of a city of the size of Anniston. State ex rel. Morrow v. Santa Cruz, 252 Ala. 130, 39 So.2d 786. See § 429(1), Title 7, Code 1940, 1951 Cum. Pocket Part, p. 66. But even if we did take judicial notice of the ordinances of the city of Anniston, sufficient facts should be alleged to disclose a violation of an ordinance and thus put defendants on notice that plaintiff's case is governed thereby. Allen v. Smith, 228 Ala. 278, 153 So. 254.

Section 5, Title 3, Code 1940, provides in part as follows: 'Every person owning or having in charge any dog or dogs shall at all times confine such dog or dogs to the limits of his own premises or the premises on which such dog or dogs is, or are, regularly kept. * * *' But this statute also provides that its provisions do not apply in any county in this state unless such provisions are adopted by the governing body of the county. There is no averment that such action has been taken by the governing body of Calhoun County. Judicial notice will not be taken that a county has adopted a local option statute. Grider v. Tally, 77 Ala. 422; Ex parte Reynolds, 87 Ala. 138, 6 So. 335; Olson v. Pederson, supra.

Counts 1, 4 and 5 of the complaint merely charge the defendants with negligence in permitting the dog to be at a place where it had the right to be, and Count 7 simply charges that defendants were want-only permitting the dog to be at a place where it had a right to be. These counts fail to establish a duty owing the plaintiff by the defendants not to permit the dog, of the usual and ordinary nature and propensities, to be in the street. The demurrer was correctly sustained to these counts. Pelham v. Spears, supra; Allen v. Smith, supra.

Count 2 contains averments very similar to those of Counts 1, 4 and 5, but it contains other averments which it is insisted makes it good as against the demurrer interposed. In Count 2 it is alleged, among other things: 'That the defendants had knowledge of the propensity of said dog [to] run after motor vehicles and that the defendants should reasonably have anticipated that injury would result to persons traveling said public street by reason of the presence of said dog thereon.'

A number of states have adopted statutes which seem to make the owner or keeper of a dog the insurer of any damage which it causes. See Netusil v. Novak, 120 Neb. 751, 235 N.W. 335. However, we do not have such a statute and the common law rule is still applicable in this state.

Our courts have dealt with suits for damages for injury inflicted by dogs where the plaintiffs have been bitten.

In the early case of Durden v. Barnett & Harris, 7 Ala. 169, 170, the rule at common law was stated thus:

'It is said the owner of domestic animals not necessarily inclined to commit mischief, such as dogs, horses, etc., is not liable for an injury committed by them, unless it can be shown that he previously had notice of the animal's mischievous propensity; or, that the injury was attributable to some neglect on his part. [Smith v. Pelah, Strange, 1264; Burk v. Dyson, 4 Camp. 198.] On this it would seem to follow that it was necessary to allege and prove a scienter.'

In Strouse v. Leipf, 101 Ala. 433, 437-438, 14 So. 667, 668, 23 L.R.A. 622, it was said:

'The doctrine is well settled that the owner or keeper of a domestic animal which is vicious, and prone or accustomed to do violence, having knowledge of such violent disposition or habits, must safely and securely keep such animal, so that it cannot inflict injury. Whether or not there was special negligence in permitting the dog's escape from the premises is not the inquiry. The keeper must, at his peril, safely keep such animal. Such is the condition on which the ownership or custody of known vicious animals is tolerated. Ownership or custody of such vicious animal is not one of the natural, inherent rights of property. It is a qualified or restricted right,--qualified by the condition that the animal can be, and is, safely confined and kept. [Authorities cited.] Previous knowledge of the animal's vicious habits must be alleged and proved. But positive proof is not always necessary. It may be inferred from circumstances. But the knowledge of the vicious habits of an animal need not refer to circumstances of exactly the same kind. All that the law requires to make the owner or keeper liable is knowledge of facts from which he can infer that the animal is likely to commit an act of the kind complained of. 1 Am. & Eng.Enc.Law, p. 582, and note.'

In...