Karlow v. Fitzgerald, 15895.

• Decision Date: 20 February 1961
• Docket Number: No. 15895.,15895.
• Citation: 110 US App. DC 9,288 F.2d 411
• Parties: Peter S. KARLOW, Appellant, v. William FITZGERALD, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

110 US App. DC 9, 288 F.2d 411 (1961)

Peter S. KARLOW, Appellant, v. William FITZGERALD, Appellee.

No. 15895.

United States Court of Appeals District of Columbia Circuit.

Argued November 14, 1960.

Decided February 20, 1961.

Petition for Rehearing Denied March 24, 1961.

Mr. Frank F. Roberson, Washington, D. C., for appellant. Mr. James A. Belson, Washington, D. C., also entered an appearance for appellant.

Mr. Laidler B. Mackall, Washington, D. C., for appellee.

Before WILBUR K. MILLER, Chief Judge, and MAGRUDER, Senior United States Circuit Judge for the First Circuit,^* and FAHY, Circuit Judge.

Petition for Rehearing En Banc Denied March 24, 1961.

MAGRUDER, Circuit Judge.

Plaintiff and defendant were neighbors. Defendant's bulldog, named Bowser, went onto plaintiff's premises without the plaintiff's having shown any prior manifestation of consent to such entry. Plaintiff testified on his direct examination that when the defendant's dog came upon his premises it first attacked him by biting him on the arm, and then jumped on his dog. From other testimony it may perhaps be inferred that plaintiff suffered the injury complained of as a result of an attempt to separate the fighting dogs. It is difficult to say from the record that this bite was made by the defendant's dog rather than by the plaintiff's. As the complaint was amended in the course of the trial, it made no difference which. We do not find that the allowance of amendment to the complaint could be deemed an "abuse of discretion" by the trial judge.

The complaint, in a single count, was based upon alleged negligence of the defendant, and is in part as follows: "Defendant negligently kept said dog when he knew or should have known of its vicious and dangerous propensities and that it was accustomed to attack people. Defendant was likewise negligent in failing to keep the animal in a manner which would prevent its doing injury and allowing said dog to run at large and trespass on plaintiff's property without his consent in violation of the Police Regulations of the District of Columbia".

The common law was clear as to the liability of one who kept or "harbored" an animal which did some harm. If the animal was a non-indigenous wild animal, such as a tiger, the harborer's liability was a species of liability without fault. In the case of one who kept a domesticated animal, such as a dog, which in the generality of cases is deemed to be "harmless," the plaintiff had to show "scienter" — it was necessary to show that the defendant knew or should have known that his dog possessed some dangerous propensity. As the trial judge told the jury in this case: "So as a rule, the owner of a dog is not liable for its biting a person unless the owner has reason to know that the dog is likely to do so."

It is worth while to point out that evidence of scienter did not have to be equivalent to evidence of negligence. As Kennedy, L. J., said in Baker v. Snell, 1908 2 K.B. 825, 834, "the keeper of a ferocious dog, if he knows it to be ferocious, is in exactly the same category as the keeper of a naturally wild animal." That is to say, the keeper of a dog, scienter having been established, is liable for the foreseeable harm done by it, however much care he may have taken to keep the dog from doing harm. See Baker v. Snell, supra. The harboring of the dog is not a legal wrong to anybody, but it must be kept at the peril of the harborer; this is again a species of liability without fault. No doubt, there might be negligence in the manner in which the defendant kept or controlled his dog; in which case anyone suffering injury as a proximate result of this breach of duty would have a cause of action at common law. As was said in Prosser on Torts 325 (2d ed. 1955), "And scienter is of course not required where any negligence can be shown in the keeping or control of the animal." See Dickson v. McCoy, 1868, 39 N.Y. 400; Drew v. Gross, 1925, 112 Ohio St. 485, 147 N.E. 757; Weaver v. National Biscuit Co., 7 Cir., 1942, 125 F.2d 463.

The Congress of the United States long ago legislated for the District of Columbia on the subject of dogs. On June 19, 1878 (20 Stat. 173), it imposed an annual tax of two dollars per annum upon "all dogs owned or kept in the District of Columbia" and specified that the owner, upon paying the tax, should be furnished with a "tax-tag." Freedom to roam was given by § 4: "Any dog wearing the tax-tag hereinbefore provided for shall be permitted to run at large in the District of Columbia * *." Section 5 was in broad terms: "Any person owning any dog so recorded in the collector's office shall be liable in a civil action for any damage done by said dog to the full amount of the injury inflicted." It was shortly thereafter held, in Murphy v. Preston, 1887, 5 Mackey 514, 16 D.C. 514, in view of the settled presumption that the legislature intended to make no innovation upon the common law further than its language expresses or plainly implies, that, despite the above words of § 5, the plaintiff still had the burden in the District of Columbia of alleging and proving that the keeper or harborer of the dog had scienter of the animal's vicious propensities. This interpretation of the act of Congress was subsequently adhered to in Bardwell v. Petty, 1923, 52 App.D.C. 310, 286 F. 772.

As late as 1942 the Court of Appeals for the District of Columbia recognized the continuing validity of Murphy v. Preston, supra, in an opinion by Vinson, Associate Justice, later Chief Justice of the United States, concurred in by Associate Justice Rutledge, who was later an Associate Justice of the Supreme Court of the United States. Scharfeld v. Richardson, 1942, 76 U.S.App.D.C. 378, 133 F.2d 340, 145 A.L.R. 980. It is perhaps noteworthy that, irrespective of this early interpretation of the 1878 Act in Murphy v. Preston, the Congress has tinkered with several sections of this statute but has made no change in § 5 so as to obviate the construction of that section by the courts. See 32 Stat. 547; 46 Stat. 522. It is now too late in the day for us to say that the Act of 1878 means anything different from what the court said it meant in Murphy v. Preston, and we do not understand that either the District Judge or appellee questions this.

The District of Columbia Police Regulations (as amended to August 25, 1955) enacted by the commissioners provide in Art. 18, § 2, that "No animal of the dog kind shall be allowed to go at large without a collar or tag, as now prescribed by law, and no person owning, keeping or having custody of a dog in the District shall permit such dog to be on any public space in the District, unless such dog is firmly secured by a substantial leash, * * * nor shall any dog be permitted to go on private property without the consent of the owner or occupant thereof."

We shall not consider the suggestion that this article of the police regulations, especially the requirement that a dog must be on a leash to be admitted to "any public space" in the District, is ultra vires and unconstitutional, in view of § 4 of the Act of Congress of 1878 providing that dogs wearing a tax-tag "shall be permitted to run at large in the District of Columbia". We say this because the question of the constitutionality of the police regulations was not made an issue in the district court and was not presented as one of the points on appeal to this court. Furthermore, there is no necessary inconsistency between § 4 of the Act of 1878 and that portion of the police regulations which prescribes that no dog shall be permitted "to go on private property without the consent of the owner or occupant thereof." A dog, though at large without a leash, might be subject to other means of control which would prevent it from trespassing on the neighbor's land without his consent.

As above stated, the complaint, perhaps inartistically, was founded solely upon the alleged negligence of the defendant. But if the evidence was sufficient to submit to the jury the issue of the defendant's scienter, the jury's verdict for the plaintiff must be sustained unless, indeed, there were some errors at the trial which called for a reversal. Defendant claims that there was an error of this kind in the instructions given to the jury, and the majority of this court agree. There was a general verdict for the plaintiff, in the sum of $3,000, and it is impossible to tell whether this verdict was based upon the claimed evidence of common law scienter, or upon the alternative ground which the trial judge permitted the jury to take, namely, that if they found that the defendant had violated the regulation forbidding a dog to trespass upon premises without the consent of the owner or occupier thereof, the defendant was guilty of negligence per se and was liable to plaintiff for all the proximate consequences of this negligence.

With respect to proximate cause, we think the trial judge was correct in telling the jury that they could find that proximate cause existed, since there is no question but the plaintiff was one of those for whose benefit the regulation was issued, and that the risk of injury to human beings arising from the invasion of premises by unwanted dogs was one of the risks sought to be eliminated by the police regulation. The trial judge told the jury: "The regulation to which I have referred has for one of its purposes the promotion of the safety of children, old people, families and individuals in their home premises and to guard them against the hazard or danger of being bitten or harmed by dogs. The regulation applies to all dogs, whether vicious or not vicious, whether with or without dangerous tendencies."

It was clearly in evidence that the plaintiff's mother, who had rented the premises next door to the defendant and had just moved into the neighborhood, had never manifested to the defendant any consent that his dog should come on her premises; and evidence which the defendant...