Parsons v. Manser

• Decision Date: 22 January 1903
• Citation: 93 N.W. 86,119 Iowa 88
• Parties: D. H. PARSONS, v. PHILIP MANSER, Appellant
• Court: Iowa Supreme Court

93 N.W. 86

119 Iowa 88

D. H. PARSONS, v. PHILIP MANSER, Appellant

Supreme Court of Iowa, Des Moines

January 22, 1903

Appeal from Warren District Court.--HON. J. H. APPLEGATE, Judge.

PLAINTIFF'S horses were stung to death by defendant's bees. From judgment for damages the defendant appeals.

Affirmed.

O. C Brown for appellant.

J. O Watson for appellee.

OPINION

LADD, J.

The plaintiff is a peddler of medicines. As such he called at the house of defendant to sell goods on the 7th day of July, 1900. He had hitched his team to a post a little west of the gate leading to the house, in the highway south of it, and about five feet from the fence. There were two bee gums about twenty-five feet north of the post in defendant's yard, and three more ten or twelve feet farther on. Trees stood close together west and north of this yard, and shrubbery and bushes to the east. The only unobstructed passage was to the south and southeast Shortly after entering the house, he heard a crash, and upon running out found that the horses had pushed through or over the fence, and their heads were were within a few feet of the hives. The hind wheels of the wagon were still on the fence, and one horse was lying down. Bees covered them. He immediately unhooked the traces, while defendant's daughter cut the lines, but both were soon compelled to flee for their own safety. Two gums were afterwards overturned by the horses. She went after help, while he did what he could by throwing water on the horses and trying to remove them.

I. The beehives were painted white, and stood about two feet above the ground. They were in clear view from the road, so that plaintiff could have seen them had he looked. This he did not do, but hitched his team where injury was likely to occur. Appellant urges that he was guilty of contributory negligence, and that the evidence failed to establish negligence on the part of the defendant. But he was entitled to the free use of the highway, and had the right to assume that those keeping animals of whose mischievous nature every one is presumed to have knowledge would exercise reasonable care for the protection of others from their depredations. True, bees may not be confined like the wild beasts. To roam seems to be necessary to their existence. They fly great distances, and, if interfered with, or their course obstructed, are likely to resent by the use of their only available weapon. Every one harboring creatures feroe naturoe is charged with knowledge of their habits and evil propensities. Moss v. Pardridge, 9 Ill.App. 490; Com. v. Fourteen Hogs, 10 Serge. & Rawle 393; Muller v. McKesson, 73 N.Y. 195 (29 Am. Rep. 123); Besozzi v. Harris, 1 Fost. & Fin. 92; Laverone v. Mangianti 41 Cal. 138 (10 Am. Rep. 269).

There is no reason for an exception in favor of the bee. Indeed, their disposition to make themselves felt is a matter of common. observation or experience from early childhood. But they are very useful, the aviary often furnishing a livelihood, and generally proving a source of profit; and the books seems to look with more favor upon the keeping of animals useful to man than those which are worthless save as curiosities. For this reason the rule of absolute liability for the consequences of injuries received from wild beasts kept in confinement, declared in the earlier decisions, even if regarded as sound, ought not to be extended to creatures so nearly domesticated. See Spring Co. v. Edgar, 99 U.S. 645 (25 L.Ed. 487); Decker v. Gammon, 44 Me. 322 (69 Am. Dec. 99); Vredenburg v. Behan, 33 La.Ann. 627; Filburn v. Peoples Palace & Aquarium Co 25 Q. B. Div. 258; Manger v. Shipman, 30 Neb. 352, 46 N.W. 527; May v. Burdett, 9 Q. B. 111. But that rule seems to have been somewhat relaxed, or, at least so explained as to be better understood. Judge Cooley, in his work on Torts, takes the position that, as the keeping of wild animals for many purposes has become recognized as proper and useful, the liability of the owner or keeper for any injury by them to the person or property of others should rest on the doctrine of negligence; that, while a high degree of care is demanded, yet if, notwithstanding this, they do mischief, it should be treated as accidental only. Cooley, Torts, 348. In Earl v. Van Alstine, 8 Barb. 630, Sheldon, J., after a careful review of authorities then existing, reached the conclusion that liability depended not on the fact that animals occasioning the injury are feroe naturoe, but upon the owner's knowledge of their disposition. Thus domestic animals are by nature harmless, and upon this the owner may rely until he has ascertained to the contrary. If, however, he harbors a domestic animal known to him to be ferocious, he is liable, without proof, of having become aware the animal has previously been guilty of like acts. See 2 Cyclopedia, Law & Proc. 368.

Wild animals are by nature fierce and dangerous, and hence of this every one is charged with notice. That is their natural state. The conclusions he reached are: "(1) That one who owns or keeps an animal of any kind becomes liable for any injury the animal may do, only on the ground of some actual or presumed negligence on his part: (2) that it is essential to the proof of negligence, and sufficient evidence thereof, that the owner be shown to have noticed the propensity of the animal to do mischief; (3) that proof that the animal is of a savage and ferocious nature is equivalent to proof of express notice." In May v. Burdett, 9 Q. B. 101, the wife had been bitten by a monkey. The declaration alleged the ferocious character of the animal and defendant's knowledge of it. Subsequent to verdict, defendant moved in arrest because of the omission to aver negligence, and Chief Justice Denman said: "But the conclusion to be drawn from an examination of all the authorities appears to us to be this: That a person keeping a mischievous animal, with knowledge of its propensities, is bound to keep it secure at his peril, and that, if it does mischief, negligence is presumed. The negligence is in keeping such an animal after notice."

Liability for safe-keeping depends not so much on the classification of animals into wild and domestic as upon their...