Graham v. Payne
| Decision Date | 11 March 1890 |
| Docket Number | 13,631 |
| Citation | 24 N.E. 216,122 Ind. 403 |
| Parties | Graham v. Payne |
| Court | Indiana Supreme Court |
From the Clinton Circuit Court.
Judgment affirmed, with costs.
J. N Sims, J. G. Adams and H. C. Sheridan, for appellant.
A. H Boulden, B. K. Higinbotham and M. Bristow, for appellee.
This was an action by the appellee against the appellant to recover damages resulting from an alleged wrong.
The appellant demurred to the complaint, which demurrer was overruled by the court, and he saved an exception; he then filed an answer in three paragraphs, the first being the general denial. To the second and third paragraphs of the answer the appellee filed a reply, which was the general denial.
The issues joined were submitted to a jury, and a verdict returned for the appellee, together with answers to certain interrogatories which the appellant caused to be propounded to the jury.
The appellant moved for judgment upon the answers to the interrogatories notwithstanding the general verdict, which motion the court overruled, and he reserved an exception. He then moved for a new trial, which motion the court overruled and he saved an exception. The court thereupon rendered judgment for the appellee:
The errors assigned are:
1. The court erred in overruling the demurrer to the complaint.
2. The court erred in overruling the motion for judgment notwithstanding the general verdict.
3. The court erred in overruling the motion for a new trial.
The facts stated in the complaint may be summarized briefly as follows:
The appellant is the father of Ira F. Payne, who is an infant; that the appellant wrongfully kept a certain ram, well knowing that it was accustomed to attack and butt mankind; that while the appellant so kept said animal it did attack and butt the said Ira F. Payne, by reason whereof, and without any fault or negligence on the part of the appellee or the said Ira F. Payne, the latter was greatly injured, and by reason of the attack and butting by said sheep his arm was broken, his hip bruised and crushed, and inguinal hernia produced, and that he was otherwise bruised, mangled and injured, whereby he has been permanently incapacitated from performing any manual labor; that the appellee has expended large sums of money for medical attention to his said son; that the said son required constant care and nursing for a long period of time; that the appellee has been, and because of the permanent character of said injuries will be in the future, deprived of the services of his said son. These averments are followed with a demand for $ 3,000 damages.
The complaint is objected to upon the ground that it does not allege that the animal was vicious or dangerous.
We think the complaint is not subject to the objection that is made to it.
It was not necessary to allege that the animal was capable of doing serious injury because of the propensity which it possessed, in any stronger or more definite language than is found in the complaint.
The allegation that the animal possessed the habit of attacking and butting mankind, and that in consequence of said propensity he attacked the son of the appellee, and inflicted the serious injuries alleged, is altogether sufficient. McCaskill v. Elliott, 5 Strobhart's Law, 196 (53 Am. Dec. 706); Van Leuven v. Lyke, 1 Comstock, 515 (49 Am. Dec. 346); Decker v. Gammon, 44 Me. 322 (69 Am. Dec. 99).
In Evans v. McDermott, 49 N.J.L. 163 (60 Am. Rep. 602, 6 A. 653), it is held: See Mann v. Weiand, 81 1/ 2 Pa. 243; Pickering v. Orange, 1 Scam. 492 (32 Am. Dec. 35); Coggswell v. Baldwin, 15 Vt. 404 (40 Am. Dec. 686).
In Partlow v. Haggarty, 35 Ind. 178, this court said: Williams v. Moray, 74 Ind. 25, supports the complaint here involved.
"The keeping of such a dog (vicious) is wrongful and at the peril of the owner, and therefore prima facie the owner is liable to any person injured by such dog without an averment or proof of negligence in securing, or taking care of it." Woolf v. Chalker, 31 Conn. 121 (81 Am. Dec. 175).
If the complaint had alleged that the ram was vicious, without alleging the character of its evil disposition, the objection would probably have been made that the allegation was a mere conclusion, and that the facts going to indicate a vicious disposition should have been averred.
Nor is it our opinion that in an action of the character of the one under consideration the plaintiff is required to allege that the animal was not confined, as the law requires of persons keeping vicious, or mischievous, animals; that is an affirmative defence which the defendant must allege and prove.
When the plaintiff alleges the mischievous, or vicious, propensity of the animal, the injury resulting therefrom and the scienter, he makes a good case upon paper, and one which the defendant must meet by a denial, or an answer which confesses and avoids the alleged cause of action. See the authorities cited above. Oakes v. Spaulding, 40 Vt. 347 (94 Am. Dec. 404). That was an action much like the one before us, to recover damages because of injuries done by a ram which had an usual propensity to butt, and had on several occasions attacked and butted persons.
The court adopts the language of Alderson, B., as follows: "In truth, there is no distinction between the case of an animal which breaks through the tameness of his nature, and is fierce, and known by the owners to be so, and one which is feroe naturoe."
And, quoting with approval the following from Brown v. Carpenter, 26 Vt. 638 (62 Am. Dec. 603), in regard to a ferocious dog: "His being in the presence of the owner affords no safe assurance that his known propensities will not prevail over the restraints of authority;" and the court goes on to say:
The court then refers to Card v. Case, 57 Eng. Com. Law, 622, and Popplewell v. Pierce, 10 Cush. 509, and says: "These cases so fully bring to notice the learning of the subject that further special references seem not to be required."
"As resting on the relation of ownership solely, unmodified by peculiar circumstances, it would be the clear duty of the owner of such animal effectually to restrain it from practicing its favorite propensity upon persons who otherwise might accidentally, and without fault on their part, be exposed to its assaults." In that case the ram was the joint property of the defendant, Spaulding and another, and the point was made that the injury occurred while the ram was in the pasture of the other joint owner. To that the court answered: "Being an owner of it, and knowing its propensity and habit of doing violence to persons, and being charged with the duty of effectually restraining it, and without protestation or counter-effort, permitting it to be in the pasture of his co-owner, and voluntarily remaining ignorant both of the place and manner in which it was kept, and under these circumstances it committed the alleged act of violence and severe injury, he failed utterly to fulfill the duty resting upon him, and stands as nakedly chargeable with liability for the damage as if he alone had owned both the ram and pasture in which the injury was done."
The case in 10 Cushing, supra, was an action to recover damages for an injury occasioned by the bite of a horse, and is quite an interesting case upon the subject under consideration. It is alleged in the complaint that the defendant wrongfully and injuriously kept a certain horse which was, during the time, used and accustomed to bite mankind, the defendant well knowing the vicious propensity of the animal. It was held that the complaint was sufficient, and that it was not necessary to charge negligence upon the part of the defendant. There seems to be no difference as to liability between the keeping of a vicious ram and a vicious dog or other animal, as claimed by the appellant. In all cases it is the duty of the owner to restrain the animal so that it can do no injury.
In Nickerson v. Wheeler, 118 Mass. 295, the court said, referring to the facts of the case as they appeared in Oakes v. Ames, supra: "The parties to the transaction there were engaged in what was a wrongful act as against any one injured thereby, namely, keeping a vicious animal, and the neglect to take care of it, by reason of which it did injury, was not an act of nonfeasance merely; the whole act of keeping was one of misfeasance."
The court committed no error in overruling the motion for judgment non obstante veredicto.
It is a well settled rule of this court that if upon any supposed hypothesis the general verdict and the answers to the interrogatories...
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