Clinkenbeard v. Reinert

• Decision Date: 20 November 1920
• Citation: 225 S.W. 667,284 Mo. 569
• Parties: WILLIAM T. CLINKENBEARD et al., Appellants, v. HENRY REINERT et al
• Court: Missouri Supreme Court

225 S.W. 667

284 Mo. 569

WILLIAM T. CLINKENBEARD et al., Appellants, v. HENRY REINERT et al

Supreme Court of Missouri

November 20, 1920

Appeal from Buchanan Circuit Court. -- Hon. L. A. Vories, Judge.

Reversed and remanded.

J. W McKnight and Mytton & Parkinson for appellants.

(1) When it is established that a dog is of a vicious or mischievous nature and that the person owning it or keeping it has actual or constructive knowledge of that fact, the owner keeps it at his peril, and is chargeable for any failure to so keep it that it cannot do any damage to any person who, without essential fault, is injured by it. 3 C J. 98; Speckmann v. Kreig, 79 Mo.App. 376; O'Neill v. Blase, 94 Mo.App. 648; Merritt v Matchett, 135 Mo.App. 176; Holt v. Meyers, 47 Ind. 118; Perotta v. Picciano, 175 N.Y.S. 16. (2) The fact that the dog is kept as a watchdog and is kept tied in the day and turned loose at night is notice to the master that he is dangerous. Speckmann v. Kreig, 79 Mo.App. 376; Brice v. Bauer, 108 N.Y.S. 428; Hanke v. Fredericks, 140 N.Y. 224. (3) The owner or keeper of a dog of known vicious propensity, in violation of a statute or ordinance, is liable for injury caused by the dog being at liberty while afflicted with rabies, although he did not know or have reason to believe that the dog was mad. Elliott v. Herz, 29 Mich. 204; Van Etten v. Noyes, 112 N.Y.S. 888; Jenkinson v. Coggins, 81 N.W. 974; Legault v. Malacker, 163 N.W. 478.

W. N. Linn and John E. Heffley for respondents.

(1) Appellants' petition contained two counts; one charging common law negligence, and the other charging negligence under the revised ordinances of the city. Both counts charge the death of appellants' child by being bitten by a vicious dog, alleged to have been owned and kept by respondents. The evidence shows conclusively that the child died from hydrophobia, by being bitten by a dog afflicted with rabies -- a fatal variance between the allegations contained in the petition and the proof. It is a well settled law that plaintiff cannot sue upon one cause of action and recover upon another. Madden v. Ry. Co., 167 Mo. 143; Gibeline v. Smith, 106 Mo.App. 545; Henry County v. Citizen's Bank of Windsor, 208 Mo. 209. (2) Very few cases of this kind has been tried in the courts of this country, and none in this State. It has been conclusively held that the owner or keeper of a dog afflicted with rabies is not liable for the acts of the rabid dog (with the possible exception that the owner knew, or had means of knowledge of the dog's rabid condition, and negligently failed to restrain or destroy it). State ex rel. v. Ellison, 271 Mo. 463; Legault v. Malacker, 166 Wis. 58; Elliot v. Herz, 29 Mich. 202; Van Etten v. Noyes, 128 A.D. 406, 112 N.Y.S. 888.

GRAVES J. WOODSON, J., concurring in part and dissenting in part. BLAIR, J., concurring. Woodson, J., concurs with Blair.

OPINION

In Banc

GRAVES, J.

Action by plaintiffs (husband and wife) for the death of their daughter of the age of about six years. The child was bitten by a dog on December 17, 1913, and died January 25, 1914, from rabies. The petition is in two counts. The first charges common law negligence in that "the defendants negligently kept and owned and harbored on their premises a dog of mischievous and vicious propensities that was disposed to bite or attack or injure a person, all of which facts were well known to defendants."

The second count is based upon ordinance negligence, and specifically pleads two sections of ordinances of the City of St. Joseph relating to owning, keeping or harboring vicious dogs and other vicious animals, and defining the terms "keeping and harboring" as used in such ordinances.

Upon a trial, the court upon the conclusion of the evidence for the plaintiffs, gave a peremptory instruction to the jury to find the issues for the defendants, and thereupon plaintiffs took an involuntary nonsuit. Without avail the plaintiffs moved to set aside their involuntary nonsuit, and the case is here upon their appeal.

The evidence tends to show the vicious character of the dog, and that defendants had knowledge of the vicious character of the dog. It further tends to show that the child of plaintiffs was bitten by this dog of the defendants at a point some distance from the premises upon which the dog was usually kept as a watch dog. Further the testimony of witnesses shows that upon the day this child, and a young man was bitten by this dog, the animal was mad, or suffering from rabies. The head of the dog was examined by Dr. Logan, who does the "bacteriology and chemistry work for the Board of Health" of the City of St. Joseph, and the doctor says that the dog had rabies. There is no evidence showing that defendants knew that the dog was afflicted with rabies. The evidence shows that the little girl died of rabies, and not from the physical effects of the wounds inflicted by the dog, excluding the virus imparted by reason of the rabid condition of the dog.

Defendants urge that the peremptory instruction was proper for two reasons: (1) that the petition charges that the child died from wounds inflicted by a vicious dog, whereas the proof shows that she died of rabies, and (2) that there was no proof that defendants had any knowledge of the dog being afflicted with rabies. From this it will be observed that the issues upon appeal are narrow.

I. We are not impressed with the contention of the respondent to the effect that plaintiffs sued upon one cause of action, and proved another. In other words, that there was a fatal variance between the pleadings and proof. We think the real question is the sufficiency of the proof. It is true that the petition only charges that plaintiffs' child was bitten by a known vicious dog, then owned, kept and harbored by defendants. It does not aver that the dog was rabid, or that the child died from rabies. It does aver that the child died from the effects of bites inflicted by defendants' known vicious dog. The child did so die. But for the bite of the vicious animal, the child might be living now. So that we rule that it is not so much a question of fatal variance between the petition and the proof, but rather a question of the sufficiency of the proof, as measured by the law on the facts shown. It is true that we universally rule that one cannot sue upon one cause of action, and recover upon another and different cause of action, as shown by his facts. To such cases we are cited by respondent, but they have no application here. The petition charged that this child came to her death by a dog bite inflicted by a vicious dog belonging to defendants. The proof so shows. Whether the fact that the dog was rabid (under the facts shown) defeats plaintiff's case, we leave for further discussion.

II. The proof shows that defendants had knowledge of the vicious disposition of their dog. He was kept tied up, except at nights, when he was loosened as a watch dog. Had this child died from wounds inflicted by this dog (excluding the question of rabies) there would be no question of liability. In 3 Corpus Juris, page 97, the rule is thus stated:

"At common law, the owner of a dog is not liable for injuries caused by it, unless it is vicious and notice of that fact is brought home to him. But when it is once established that the dog is of a vicious or mischievous nature, and that the person owning or keeping it has knowledge of that fact, the same responsibility attaches to the owner to keep it from doing mischief as the keeper of an animal naturally ferocious would be subject to, and proof of negligence on the part of the owner of the dog is unnecessary."

To like is 2 Am. & Eng. Ency. Law. (2 Ed.), page 366, whereat it is said:

"The owner of a vicious dog, knowing of his dangerous propensities, is bound to keep him secure at his peril, and if any one, without negligence on his part, is injured by the animal, the owner will be liable for all the damages sustained."

And on page 367 et seq., it is added:

"The gist of the action is the keeping of the animal with knowledge of its vicious propensities.

"A Prima-Facie Liability. -- So that one who keeps a dangerous dog with knowledge of its vicious propensities incurs a prima-facie liability for any injury caused by it.

"And proof of negligence on the part of the defendant is not necessary, as it will be presumed."

And 1 Ruling Case Law, page 1089, says:

"The owner of an animal not naturally vicious is not answerable for an injury done by it when in a place where it had a right to be, unless it was in fact, and to his knowledge, vicious. If, being theretofore of a peaceable disposition, it suddenly and unexpectedly, while in charge of its owner or his servants, inflicts injury on another, neither, if at that time in the exercise of due care, is answerable. But if one knowingly keeps a vicious or dangerous animal, which is accustomed to attack and injure mankind, he is prima-facie liable for injuries done by it, without proof of negligence as to the manner of keeping it. The negligence on which the liability is founded is keeping such an animal with knowledge of its propensities. Thus it is evident that as respects the liability of the owner there is no distinction between the case of an animal which breaks through the tameness of its nature, and is fierce, and is known by its owners to be so, and one which is ferae naturae. But while the ancient rule as generally found stated is that the gist of an action for injuries inflicted by a ferocious animal is keeping it, with knowledge of its vicious propensities, negligence or the want of negligence being deemed immaterial, to some courts a more accurate statement of the true principle governing the owner's legal responsibility...