Goodman v. Gay

• Decision Date: 01 January 1854
• Citation: 15 Pa. 188
• Parties: Goodman versus Gay.
• Court: Pennsylvania Supreme Court

15 Pa. 188

Goodman versus Gay.

Supreme Court of Pennsylvania.

FROM the Nisi Prius, Philadelphia.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

The case was argued by McGlaughlin, for plaintiff in error.

By Brightly, with whom was Pulte, for defendant in error.—As to 1st specification, it was alleged that in actions in tort, the matter in controversy is the sum laid in damages in the declaration: 1 Ser. & R. 269; 3 id. 461; 4 id. 78.

2. It is not assignable for error that the evidence did not sustain the allegation in the pleadings, unless the court was called on so to charge the jury: 2 Barr 232; 4 id. 317-320.

3. The second count refers to the first count as to time. The blank was in an immaterial part.

4 & 8. The decisions in regard to dogs, and animals not naturally inclined to commit mischief, are inapplicable; such animals are usually permitted to be at large, and the owner will not be liable without notice of their mischievous propensity. But if a dangerous animal be permitted to go at large, and mischief ensue, the person permitting it is liable, the law presuming notice of the mischievous propensity. The law is the same as to animals having a propensity to rove: 1 Ch. Pl. 82-83; 10 Ser. & R. 395; 2 Saun. Pl & Ev. 864; 7 W. & Ser. 369; 7 Barr 254; 6 id. 318; 4 Burr. 2092; 2 Lev. 172; 1 Miles 39.

5. The court will presume that leave was given to file the additional counts; 7 Barr 126; id. 492.

6. Where there are several issues, both in law and fact, the plaintiff may, without waiting for a decision on the issues in law, go to trial on the issues in fact, and at the same time have contingent damages assessed on the counts in his declaration to which the demurrer applies: 2 Saund. 300, note 3; 6 Pa. Law Jour. 335. The court will presume that the jury were properly sworn.

7. See 2 Salk. 662; 4 Camp. 198; 2 Strange 1264; 1 Barn. & Ald. 621; 4 Dowl. & Lowndes 45; 7 Carr & Payne 339; 13 Johns. 339; 1 Denio 127; 1 Scam. 339; 6 Barr 472.

9. The ninth assignment is a verbal criticism, to which the attention of the court was not called: 3 Ser. & R. 379.

The opinion of the court was delivered by COULTER, J.

It is difficult to tell exactly, from the paper-book, the precise position of this cause.

It has been argued as if the verdict and judgment were upon all the counts; and yet there is an issue to the country only upon the first count; and as to the second and third, there is a special demurrer to each. The verdict, therefore, must be considered as rendered on the first count, because on that only was there an issue in fact. And to the trial, progress, and result, certain exceptions were filed and signed, as appears by the paper-book, all relating to the first count. These I will consider directly. The defendant demurred specially to the second and third counts, and pending these demurrers, the plaintiff went on to trial, I presume, on the first count, as that only was triable before a jury. After verdict, the demurrers were overruled, and judgment rendered on them for the plaintiff. As to its not appearing in these two counts demurred to, that the injuries complained of were committed or inflicted before suit brought, — that is a mistake. It is clearly enough averred, in the words: "Afterwards, to wit, the same day and year aforesaid, (referring to the injury in the first count,) did permit and suffer, &c.," "and afterwards whilst the defendant so kept the same," obviously averring and meaning, that whilst the defendant kept the horse, as averred in the first count, all subsequent statements as to time referred to and hung upon the time averred in that first count. And this is quite sufficient.

The second ground of special demurrer is as to the scienter of the defendant in relation to the vicious habit of the animal. And this is the ground of the demurrer to the third count. In the third count it is alleged that the plaintiff unlawfully and wrongfully permitted the animal to run at large, &c., and in all of them, Kensington, the locus in quo, is asserted to be a densely populated place, which is a matter publicly known, and that it is part of a great and populous city. The demurrer then, on this ground, opens up the same question that occurs in the bill of exceptions signed on the trial of the cause, and that is, whether a person, who voluntarily turns out a horse in a populous city, to play and gambol in the streets, is responsible in an action on the case for any injury which that horse does by kicking a boy or child, without its being proved or averred that the owner knew the horse was vicious, and had a habit of kicking men or boys or women. There are English cases, undoubtedly, and some American, which hold that the owner of domestic animals is not liable for injuries they commit unless he knew that they were vicious. But these cases generally are in relation to dogs, a domestic animal which everybody in every place owns and keeps, and suffers to go at large. The custom is almost as old as time, for Tobit had his dog. The universality of this custom has made the practice lawful, unless where it is interdicted by statute, which has been done to a certain extent in our State. And, within the limits of that interdict, it has been held that the owner, who does not chain or house up his dogs, is liable for the injury they commit, whether he knew they were addicted to killing sheep or not: 7 Barr 254.

In relation to cases where the injury was inflicted by...