Bormann v. City of Milwaukee

• Citation: 93 Wis. 522,67 N.W. 924
• Parties: BORMANN v. CITY OF MILWAUKEE.
• Decision Date: 19 June 1896
• Court: United States State Supreme Court of Wisconsin

93 Wis. 522

67 N.W. 924

BORMANN

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

June 19, 1896.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by August Bormann against the city of Milwaukee for injuries inflicted by animals kept by defendant in a public park while he was as an employe working therein. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.Fiebing & Killilea, for appellant.

Charles H. Hamilton, for respondent.

CASSODAY, C. J.

This is an appeal from an order sustaining a demurrer to a complaint, alleging, in effect, that the defendant is the owner of the West Side Park, used by it for park purposes; that at the times mentioned it kept and maintained deer and elks therein; that the plaintiff was employed by the defendant, and served as its employé, under directions to him from his superior officers in charge of the park, who were informed and had knowledge of the vicious and dangerous propensities of such animals; that September 29, 1893, while carrying out the directions of his superior officers lawfully in charge of the park, the plaintiff entered the inclosure where such elks and deer were being kept and maintained by the defendant, and thereupon and immediately thereafter he was violently attacked and seriously and permanently injured and wounded by said animals; and prayed judgment against the defendant for $10,000 damages by reason of such injuries. In the absence of any statute to the contrary, and in the case of domestic animals rightfully in the place where the mischief was done, this and other courts have frequently held that the owner cannot be held liable for injuries inflicted by them, unless the plaintiff alleges and proves that prior to the injury the defendant had notice of their vicious propensities. Dearth v. Baker, 22 Wis. 73;Kertschacke v. Ludwig, 28 Wis. 430;Slinger v. Henneman, 38 Wis. 504;Chunot v. Larson, 43 Wis. 536;Durrell v. Johnson (Neb.) 48 N. W. 890;Van Leuven v. Lyke, 1 N. Y. 515;Decker v. Gammon, 44 Me. 322;Earl v. Van Alstine, 8 Barb. 630;Brice v. Bauer, 108 N. Y. 428, 15 N. E. 695; Tillett v. Ward, 10 Q. B. Div. 17; Sanders v. Teape, 51 Law T. 263. Such domestic animals have been held to include horses, oxen, cows, sheep, swine, dogs, and even bees. Id. The complaint in the case at bar is drawn on the same theory, and alleges that at and before the injury the defendant and its officers and agents were informed and had knowledge of the vicious and dangerous propensities of such animals. But in the case of lions, tigers, bears, elephants, monkeys, or any other wild and ferocious animals, the owner, as well as others, is conclusively presumed to know that they are vicious, and liable to do mischief, unless properly confined. This is apparent from numerous references in the cases already cited. Little v. City of Madison, 42 Wis. 643;Id., 49 Wis. 605, 6 N. W. 249;Scribner v. Kelley, 38 Barb. 14; May v. Burdett, 9 Q. B. 101, 9 Adol. & E. (N. S.) 101; Filburn v. Aquarium Co., 25 Q. B. Div. 258. Thus the law recognizes two distinct classes of animals, and the only difficulty is in determining whether certain animals belong to the one class or the other. As stated by Lord Esher, M. R., in the case last cited: “There can be no dispute that there are some animals that every one must recognize as not being dangerous on account of their nature. Whether they are feræ naturæ so far as rights of property are concerned is not the question. They certainly are not so in the sense that they are dangerous.” In the same case Bowen, L. J., said: “If, from the experience of mankind, a particular class of animals is dangerous, though individuals may be tamed, a person who keeps one of the class takes the risk of any damage it may do. If, on the other hand, the animal kept belongs to a class which, according to the experience of mankind, is not dangerous, and not likely to do mischief, and if the class is dealt with by mankind on that footing, a person may safely...