Holt v. Leslie

• Decision Date: 25 January 1915
• Docket Number: 132
• Citation: 173 S.W. 191,116 Ark. 433
• Parties: HOLT et al. RECEIVERS v. LESLIE
• Court: Arkansas Supreme Court

173 S.W. 191

116 Ark. 433

HOLT et al. RECEIVERS v. LESLIE

No. 132

Supreme Court of Arkansas

January 25, 1915

Appeal from Searcy Circuit Court; George W. Reed, Judge; reversed in part, affirmed in part.

STATEMENT BY THE COURT.

On the 3d of August, 1913, the Missouri & North Arkansas Railroad Company was in the hands of receivers and being operated by them. R. M. Warner was in their employ as station agent at Leslie, Arkansas. He was also agent for appellant, Wells Fargo & Company Express. The office of the latter company was maintained in connection with that of the receivers, at the railroad depot.

Doctor Sheridan lived at Leslie, Arkansas. His son lived at Clarence, Missouri. The son shipped to his father, through Wells Fargo & Company Express, over the railroad, a large bull dog. The dog was received at the depot at Leslie on the 3d of August, 1913; was crated and had a chain on him. The crate was marked, "Be careful. Hands off." He was placed in the wareroom of the depot at Leslie, and on the afternoon of August 3, the consignee called for him. He did not take the dog out then, giving as his reason that he did not have the dog house ready for him. The express agent says that he did not take the dog because he did not have the money with which to pay the express charges. The dog had been crated three days before he got to Leslie. On the morning of the 5th of August, the owner still not having paid the charges and received the dog, he was uncrated. Mabrey, the check clerk at the depot, in the employ of R. M. Warner stated that the consignee, Sheridan, showed him a letter from his son stating that he had shipped his father the dog; that he had bit a man, and he was shipping him to his father to keep awhile. Sheridan warned the witness to be careful with the dog. The witness told the agent, Warner, but he did not remember when he told him. Sheridan stated that he thought he told both Warner and his clerk, Mabrey, that his son said the dog was dangerous. He did not instruct them to take the dog from the crate. He did not refuse to immediately receive the dog because he was vicious, but was delaying in order to get a house for the dog so that he could put him in his barn. When he went to the depot and told Mabrey, the clerk, about what was contained in the letter parties were around the crate poking at the dog. Sheridan told them that they had better let him alone.

The clerk, Mabrey, stated that the dog was "tolerably peaceable while he was in the crate and there was not anybody around him, but after they took him out and he was rested he seemed to be pretty bad. They kept him chained and he would lunge at anybody that came around. He had been in the crate a good long while and they took him out to stop his barking."

Warner the agent, had seen the dog "lunge at lots of people." The dog was chained in the depot, being in the freight room some and in another room where they kept the ticket case and copying table some. He was kept in the freight room where people would go in to get their freight.

Agent Warner testified that he received the dog as the agent for the Wells Fargo & Company Express, and that he was in the custody of that company; that he had no authority from any one to take the dog out of the crate and he was not authorized to do so by any of his employers. He was taken out of the crate by witness' son or Mabrey, his clerk. He was not permitted to run at large around the depot, but was on the chain all the time. He stated that he did not see anything to indicate that the dog was vicious or dangerous that he could handle him with ease and had no fear of him. He denied that Sheridan had shown him any letter from his son stating that the dog was a vicious or dangerous dog.

On the afternoon of August 5, the appellee, a man fifty-two years of age, went to the depot to get some sugar that had been shipped to him at Leslie. The agent's son had gone in the freight room after the dog and came out through the office with him. The dog was walking in front of the boy and the boy had hold of the chain. The appellee, Leslie, had gone into the depot to inquire about his sugar, and he states that as he stepped out of the depot door the dog grabbed him by the calf of his leg, biting him and inflicting a serious injury. He states that the dog was in the hallway; that they came through out of the waiting room into the depot building, and that the dog bit him just as he went out at the door onto the platform.

The appellee sued the appellants' alleging the shipment of the dog; that the dog was vicious, and that the agents of the appellants were apprised of that fact; that they negligently uncrated the dog and permitted him to go free in the depot building, and negligently kept him at the depot, and that through such negligence the appellee received his injury, for which he asked damages in the sum of $ 5,070.

The receivers and the express company answered separately admitting the shipment and denying the allegations of negligence. The appellant railroad company answered, alleging that its road was being operated by the receivers, and that it had no control over them, and otherwise adopting the answers of the other appellants.

The above are substantially the facts upon which the appellee recovered judgment against all of the appellants in the sum of $ 500, to reverse which is the object of this appeal.

Judgment affirmed.

W. B. Smith, J. Merrick Moore, H. M. Trieber and Troy Pace, for appellants.

1. The railroad company can not be held liable. 44 Ark. 322.

2. Nor can the receivers be liable. 99 Am. Dec. 438; 1 R. C. L. Animals 63.

3. Nor is the express company liable. 55 A. 237; 56 N.E. 879; 21 Oh. 302; 14 A. 461; 27 P. 17; 24 N.E. 216; 22 Am. St. 716; Burrows on Negl., § 150; Cooley on Torts, 412, note. The carrier is not the keeper or harborer of the dog in a legal sense. 17 L.R.A. (N.S.) 431, and 40 cases cited. A carrier is not liable except for negligence. 1 R. C. L. Animals, 71 F. 939; 16 L.R.A. (N.S.) 445; 99 Am. Dec. 438. See also, Am. Cas. 1912, c. 753.

S. W. Woods, for appellee.

1. If appellee is entitled to recover, damages should be awarded for loss of time, medical treatment, pain and suffering and dread of hydrophobia. 52 Vt. 251; 18 Tex. C. App. 690; 42 A. 723; 1 Cyc. 899.

2. Notice to the agent is notice to the principal. 29 Ark. 99; 21 Id. 22; 58 Id. 84; Ib. 446; 32 Id. 251; 1 Cyc. 898; 8 Oh. Dec. 92. A single vicious act of a dog may be such as to imply notice. 48 Am. Rep. 253; 57 Mo. 606; 1 Rul. Cas. Law. 1117.

3. When the express company accepted the dog the company became a common carrier and must use due diligence in its care. 7 A. & E. Enc. 554, 555; 93 U.S. 174; 62 Iowa 57; 99 Am. Dec. 438.

OPINION

WOOD, J., (after stating the facts).

The appellant, Missouri & North Arkansas Railroad Company was in the hands of receivers, and the agents, through whose negligence appellee alleges his injury was received, were the agents of the other appellants and the appellant railroad company had no control over them. The appellant railroad company is, therefore, not liable. Memphis & Little Rock Railway Co. v. Stringfellow, 44 Ark. 322; Ark. Cent. Ry. Co. v. State, 72 Ark. 250, 79 S.W. 773.

The judgment against the appellant railroad company is reversed and the cause, as to it, is dismissed.

Agent Warner, who was in charge of the depot at Leslie, was the agent of the express company and the receivers, whom we will, for convenience, hereafter treat and designate as the appellants. They were maintaining the depot building in conjunction for the transaction of their business.

The court, among others, gave the following instruction:

"It was the duty of the defendants using said depot to use ordinary care to keep it in a safe condition for the benefit of those who had a legal right to go upon said depot premises, and I instruct you that one having business to transact with the defendants, or either of them, had a legal right to go to the said depot, and I instruct you that if from the preponderance of the testimony that the said John Leslie had business to transact with said defendants, or either of them, that he had a legal right to go to said depot; and if you find from a preponderance of the testimony that the said John Leslie was injured while upon the premises of the said defendants, and that it resulted from the failure of the said defendants to use ordinary care to keep said depot in a safe condition, then you will find for the plaintiff."

The court gave other instructions which, in effect, told the jury that if the appellants, the receivers and the express company, knew that the dog was vicious and dangerous, and, with such knowledge, kept the dog in the depot building whereby the appellee received the injury of which he complained then the appellants would be liable.

These instructions considered together, as they must be, were not prejudicial to appellants. The court properly instructed the jury under the evidence, on the question as to whether or not the receivers had exercised ordinary care to keep the depot building in a safe condition for those who had business to transact with them. See St. Louis & S. F. Rd. Co. v. Grider, 110 Ark. 437, 161 S.W. 1032. Warner was the agent of both appellants. In maintaining the depot and in carrying on their business, his knowledge, therefore, was the knowledge of the appellants. Whether or not the dog was a vicious and dangerous one, and whether or not the agent,...