Clinkenbeard v. Reinert

• Decision Date: 20 November 1920
• Docket Number: No. 21096.,21096.
• Citation: 225 S.W. 667,284 Mo. 569
• Parties: CLINKENBEARD et ux. v. REINERT et al.
• Court: Missouri Supreme Court

225 S.W. 667

284 Mo. 569

CLINKENBEARD et ux. v. REINERT et al.

No. 21096.

Supreme Court of Missouri, in Banc.

November 20, 1920.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by William T. Clinkenbeard and wife against Henry Reinert and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

J. W. McKnight, of King City, and Mytton & Parkinson, of St. Joseph, for appellants.

W. N. Linn and John E. Heffley, both of St. Joseph, for respondents.

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 watchdog. 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 the 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 plaintiff's 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, belt 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 plaintiffs' case we leave for further discussion.

II. The proof shows that defendant had knowledge of the vicious disposition of their dog. He was kept tied up, except at nights, when he was loosened as a watchdog. Had this child died from wounds inflicted by this dog (excluding the question of rabies), there would be no question of liability. In 3 C. J. p. 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 effect is 2 Am: & Ency. of. Law (2d Ed.) p. 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. Prime 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 R. C. L. p. 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 fern naturæ. But while the ancient rule, as generally founded 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 seems to be that the gist of the action is the failure to keep such animals securely."

We are cited to no dog case from this court, and have found none, of value here. However, our Courts of Appeals have often spoken upon the subject. Among those decisions are Speckmann v. Kreig, 79 Mo. App. 376; O'Neill v. Blase, 94 Mo. App. 648, 68 S. W. 764; and Merritt v. Mitchell, 135 Mo. App. 176. The O'Neill Case, supra, is not really a dog case, but the rule which applies to vicious dogs applies alike to other vicious animals. In the Speckmann Case, supra, 79 Mo. App. loc. cit. 381, Bland, P. J., said:

"The contention of appellant is that the basis of the action is negligence, and that his refused instructions should have been given. If it was incumbent on the plaintiff to entitle him to recover to show that defendant negligently sent him to the barn, then the appellant's contention is undoubtedly correct. The evidence leaves no room for the shadow of a doubt that defendant knew of the vicious propensity of the dog. The fact that a dog is kept as a watchdog (as this one was), and is kept tied in the day and turned loose at night, is notice to the master that he is dangerous. Brice v. Bauer, 2 Am. St. Rep. 458; Brice v. Bauer, 108 N. Y. 428; Montgomery v. Koesler, 35 La. Ann. 1091; Good v. Martin, 57 Md. 506. Defendant's own testimony shows that he knew the dog was dangerous, and that he knew or had good reason to believe the dog was loose at the time the plaintiff went into the yard; indeed, scienter by defendant of the vicious propensity of the dog is not controverted. The law is the dog being a vicious one, of which propensity the defendant had knowledge, he kept it at his peril. Strauss v. Lieff, 46 Am. St. Rep. 122; Conway v. Grant, 30 Am. St. Rep. 145; Sylvester v. Maag, 35 Am. St. Rep. 874; Wolff v. Chalker, 81 Am. Dec. 175; McCaskill v. Elliott, 53 Am. Dec. 706; Arnold v. Morton, 25 Conn. 92; Smith v. Palah, 2 Str. 1264. And the gist of the action for injury by the dog, after knowledge of its vicious propensity had been, acquired by defendant, is not negligence in the manner of keeping the dog, but is for keeping it at all. The duty of the defendant when he acquired knowledge of the ferocious disposition of his dog `was to hang it,' not to keep it, at the risk of the lives and limbs of children and of adults who might lawfully come upon or pass by his premises at night. May v. Burdett, 9 Q. B. 10; Jones v. Perry, 2 Esp. 482; Mason v. Keeling, 12 Mod. 332; Wheeler v. Brant, 23 Barb. 324; Lynch v. McNally, 73 N. Y. 347; Muller v. McKesson, 73 N. Y. 195, and cases cited. `Such an animal is a...