Beckett v. Beckett

• Decision Date: 31 August 1871
• Citation: 48 Mo. 396
• Parties: DURHAM BECKETT, Plaintiff in Error, v. JAMES BECKETT, Defendant in Error.
• Court: Missouri Supreme Court

48 Mo. 396

DURHAM BECKETT, Plaintiff in Error,

v.JAMES BECKETT, Defendant in Error.

Supreme Court of Missouri.

August Term, 1871.

Error to Linn Circuit Court.

A. W. Mullins, for plaintiff in error.

The defendant's bull, charged in the petition with having killed the plaintiff's horse, comes within one of the statutory exceptions to the common-law rule permitting domestic animals to roam at large. (Wagn. Stat. 134, § 5; Sess. Acts 1869, p. 80.) At the old common law every man was bound to keep his beasts within his own close, under the penalty of answering by distress or action for all injuries arising from their being abroad. (Rust v. Low, 6 Mass. 90-4; Bush v. Brainerd, 1 Cow. 78, note a; Dolph v. Ferris, 7 Watts & Serg. 367, 370.)

G. W. Easley, for defendant in error.

I. To make the defendant liable in this case it would be necessary to allege and prove notice or knowledge of the vicious disposition of his animal. (Lyke v. Van Leuven, 4 Denio, 127; 1 Comst., N. Y., 515; Page et al. v. Hollingsworth, 7 Ind. 317; Vrooman v. Lawyer, 13 Johns. 339; Campbell v. Brown, 19 Penn. 359; 22 Ill. 140.)

II. Our statute (Wagn. Stat. 134, § 5) does not change the rule of the common law. That statute gives no other remedy than the one specifically provided; and even before such specific remedy can be followed, the owner, if known, must have notice.

The cases cited by the counsel for the plaintiff, where the owner has been held liable without knowledge of the vicious propensities of his animal, are all cases for trespass quare clausum fregit, where the killing of the animal is alleged in aggravation of the damages to the trespass; while the case at bar is simply for damages for the killing of the animal. For distinction made in such cases, see Lyke v. Van Leuven, 1 Comst., N. Y., 515.

WAGNER, Judge, delivered the opinion of the court.

The plaintiff in his petition stated that on and prior to the 28th day of September, 1870, the defendant wrongfully and unlawfully permitted a vicious and dangerous bull, over one year of age, to run at large; and that on the day last aforesaid the said bull, while so running at large, came upon the premises of the plaintiff, and then and there gored and killed a gray mare belonging to the plaintiff, of the value of $100, for which amount judgment was prayed.

The petition was demurred to on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained and judgment rendered thereon, and the cause is brought to this court by writ of error.

The only question in the case is, whether the failure of the petition to allege that the owner had knowledge of the vicious habits and propensities of the animal constitutes a fatal defect. This is a common-law action, and the statute which has been cited has no application. The general principle is that the owner of a domestic animal is not liable for the injuries which it may have committed unless he had notice of its vicious propensity, or that it was accustomed to do mischief. (Vrooman v. Lawyer, 13 Johns. 399; Lyke v. Van Leuven, 4 Denio, 127; 1 Comst., S. C., 515.) And the scienter must be alleged, and submitted as a question of fact for the consideration of the jury. (Campbell v. Brown, 19 Penn. St. 359.)

In an old case it was decided that a declaration, in an action on the case for an injury done by the defendant's dog, must state that he knew the dog was of a mischievous nature, or had done mischief before. (Mason v. Keeling, 12 Mod. 332.) So it was held that an action on the case would not lie for keeping a mad bull, without alleging a scienter. (Buxentine v. Sharp, 3 Salk. 12.) Where the defendant's dog was under his wagon in the shed of an inn where the defendant was a guest, and bit the plaintiff, the innkeeper, while he was unhitching the horses to move them, it was held that whether the dog was or was not-- quoad the master, who had tried to send him home--an involuntary trespasser, the defendant was not liable unless he knew that the dog was vicious, and the subsequent conduct of the dog was held not admissible to show his character. (Fairchild v. Bentley, 30 Barb. 147.) In the case of Lyke v. Van Leuven, supra, it appeared that the plaintiff and defendant were the owners of adjoining fields, and...