Holt v. Myers

• Decision Date: 15 February 1911
• Docket Number: No. 7,096.,7,096.
• Citation: 47 Ind.App. 118,93 N.E. 1002
• Parties: HOLT v. MYERS.
• Court: Indiana Appellate Court

47 Ind.App. 118

93 N.E. 1002

HOLT

v.MYERS.

No. 7,096.

Appellate Court of Indiana, Division No. 2.

Feb. 15, 1911.

On petition for rehearing. Denied.

For former opinion, see 93 N. E. 31.

ADAMS, J.

A petition for a rehearing is presented in this case based upon the ground that the court erred in holding as harmless that part of instructions 9, 11, and 12, reading, “Or should have known by the exercise of reasonable care.” It is assumed by counsel for appellant that the court in the original opinion conceded that the words were erroneous. The opinion will not bear such construction, but holds that as the evidence was not in the record the court must assume that there was evidence of actual notice of the vicious nature of the dog, and, if such proof was before the jury, then the charge that appellant would be bound by constructive notice was harmless. There is no denial in the opinion of the well-settled rule that, where no evidence could be introduced under the issues that could have rendered the instructions proper, the cause must be reversed even though the evidence is not in the record.

The appellant was charged in the complaint with owning and keeping a large and vicious bulldog upon his stock farm, and that he knew of the dog's propensities to bite and attack persons, or should have known by the exercise of reasonable care. Counsel for appellant are in error in assuming that constructive notice could not be shown in a case of this kind. Proof could have been offered upon the trial showing the vicious propensities of the dog, for the purpose of charging the appellant with notice, and, assuming that such proof was offered, the instructions were correct and are abundantly supported by authority. It is sufficient to prove that the dog was of a ferocious nature to charge his keeper with knowledge that, under some circumstances, the dog would attack persons. Barclay v. Hartman, 2 Marv. (Del.) 351, 352, 43 Atl. 174;Godeau v. Blood, 52 Vt. 251, 36 Am. Rep. 751;Kittredge v. Elliott, 16 N. H. 77, 41 Am. Dec. 717. If a dog is kept as a watchdog, the very purpose for which he is kept is evidence of his vicious character. Brice v. Bauer, 108 N. Y. 428, 15 N. E. 695, 2 Am. St. Rep. 454;Duval v. Barnaby, 75 App. Div. 154, 77 N. Y. Supp. 338;Nelson v. Barrett, 89 App. Div. 468, 85 N. Y. Supp. 817;Hahnke v. Friederich, 140 N. Y. 227, 35 N. E. 487. In the last case it is said: “When a person keeps a dog for the purpose of guarding his property against trespassers or criminals, it is not unreasonable to infer knowledge on his part of the propensity of the dog to attack and bite mankind, and negligence in allowing him to be at large.”

It is held in Robinson v. Marino, 3 Wash. St. 434, 28 Pac. 752, 28 Am. St. Rep. 50, in a similar action, that it is not necessary for the owner to have actual notice. The court say: “If he has notice that the disposition of the animal is such as it would be likely to commit an injury similar to the one complained of it is...