Moss v. Pardridge

• Decision Date: 31 October 1881
• Citation: 9 Bradw. 490,9 Ill.App. 490
• Parties: FREDERICK MOSSv.ANSON PARDRIDGE.
• Court: United States Appellate Court of Illinois

9 Ill.App. 490

9 Bradw. 490

FREDERICK MOSS

v.ANSON PARDRIDGE.

Appellate Court of Illinois, First District.

October Term, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. ELLIOTT ANTHONY, of the Superior Court, sitting as Circuit Judge, presiding. Opinion filed November 29, 1881.

This was an action on the case for personal injuries. The declaration contains two counts. The first alleges that the defendant, at Aurora, Illinois, wrongfully and injuriously kept a certain dog, well knowing the same to be of a vicious disposition, and disposed to attack persons, and on September 17, 1878, he bit and wounded one of the plaintiff's legs. The second count alleges that the defendant wrongfully and injuriously kept a dog for the purpose of guarding and watching defendant's premises, well knowing the dog was of a vicious disposition, and disposed to attack persons, and that defendant at the time of the injury did not keep the dog properly secured, but carelessly and negligently allowed it to have undue and improper liberty and to run at large, and that while plaintiff was on defendant's premises at his request, said dog attacked and wounded plaintiff's leg.

The jury found the defendant guilty, and assessed the plaintiff's damages at $500. The defendant's motion for a new trial was overruled, and judgment was rendered on the verdict. The defendant brings the case here by appeal, and assigns various errors.

Mr. FRANK J. CRAWFORD and Messrs. FAIRCHILD & BLACKMAN, for appellant; that knowledge by the owner of the vicious character of the animal, must be proved, cited Wormley v. Gregg, 65 Ill. 251; Keightlinger v. Egan, 65 Ill. 235; Mareau v. Vanatta, 88 Ill. 132; Flansbury v. Basin, 3 Bradwell, 531; Stumps v. Kelley, 22 Ill. 140; 1 Chitty's Pl. 81.

Messrs. QUIGG & TUTHILL, for appellee; argued that when the testimony is conflicting, it is the province of the jury to settle the controverted points, and if they are properly instructed, a new trial will not be granted, cited Summers v. Stark, 76 Ill. 208; Simons v. Waldron, 70 Ill. 281; McNellis v. Pulsifer, 64 Ill. 494; Bloom v. Crane, 24 Ill. 48; Martin v. Ehrenfels, 24 Ill. 187; Cross v. Carey, 25 Ill. 562.

As to the liability of the owner or keeper of a vicious animal for injuries caused by them: Cooley on Torts, 345; Laverone v. Mangianti, 41 Cal. 138; Muller v. McKissen, 73 N. Y. 195; May v. Burdett, 9 Ad. & E. 101; Kelley v. Tilton, 2 Abb. Ct. App. Cas. 495; Wheeler v. Brant, 23 Barb. 324; Card v. Case, 57 E. C. L. 622; Rider v. White, 65 N. Y. 54.

WILSON, P. J.

This action is not founded on any statutory liability, but is based upon an alleged liability as at common law. The distinction between the liability of the owner or possessor of animals kept for domestic use or convenience; animals mansuetœ naturæ, such as horses, cattle, dogs and the like, and the owner or keeper of wild and savage beasts, ferœ naturæ, as lions, tigers, bears, etc., is well understood. In respect to the latter class, the owner is conclusively presumed to have notice that they are vicious and dangerous, and if he neglects to keep them properly secured, he is liable for injuries committed by them, without any proof of his knowledge of their viciousness; while on the other hand, the owner of animals which, as a species are domesticated, is not liable for injuries done by them, unless he is proved to have had notice of the inclination of the particular animal complained of, to commit such injuries, there being no presumption that animals of that species are vicious or dangerous. Shearman & Redfield on Neligence, § 188. May v. Burdett, 9 Q. B. 101; Vrooman v. Sawyer, 13 John. 339; Wormley v. Gregg, 65 Ill. 251. It was, therefore, incumbent on the plaintiff to aver and prove knowledge on the part of the defendant, that the dog in question was of a vicious disposition, and inclined to attack persons. The declaration contains such averment, and proof of scienter was indispensable to the plaintiff's right to recover.

We have carefully read the evidence, as preserved in the bill of exceptions, and think it wholly insufficient to sustain the allegation of notice. The most that can be fairly claimed under the proof, is that the animal was a strong dog, of medium size, and that it was a vigilant watch-dog. Like many other watch-dogs, it may have been dangerous, if improperly or incautiously approached, while guarding property, and yet it could not be properly denominated a vicious animal, disposed to attack persons. There was no proof that the dog had ever been known to attack any person prior to the occurrence in question, while, on the contrary, many witnesses were called who testified to having seen him constantly running at large, as did other dogs in the neighborhood, often playing with children and others; and they had never observed any special manifestations of a vicious temper. It is true, he was kept tied up a part of the time, but this, as appears, was for other reasons, than because it was considered by the defendant or his family dangerous to let him run at large.

But if there had been proof of occasional manifestations of viciousness, there was an entire failure to show that the defendant was aware of it. He testifies that large numbers of persons were in the habit of frequenting his house, and that he never knew nor heard of the dog attacking any one, nor of its having a disposition to do so. We...