Quilty v. Battie

• Decision Date: 04 October 1892
• Parties: QUILTY v. BATTIE et al.
• Court: New York Court of Appeals Court of Appeals

135 N.Y. 201

32 N.E. 47

QUILTY

v.BATTIE et al.

Court of Appeals of New York.

Oct. 4, 1892.

Appeal from supreme court, general term, third department.

Action by Josie Quilty, an infant, by guardian, etc., against Rebecca B. Battie and Joseph M. Battie, to recover damages for the bite of a dog. From a judgment of the general term (15 N. Y. Supp. 765) affirming a judgment entered for plaintiff on the verdict of a jury, defendants appeal. Affirmed as to defendant first named, and reversed as to the other.

Matthew Hale, for appellants.

C. C. Van Kirk, for respondent.

MAYNARD, J.

The plaintiff has recovered against both defendants, who are husband and wife, for injuries resulting from the bite of a vicious dog. The liability of the wife is disputed on the grounds that she is a married woman, that the dog belonged to her husband, and that she is not responsible for the trespasses committed by it. There is no conflict in the evidence upon any material point affecting her liability. She had been the owner of the premises where the dog was kept since December, 1887. They formerly belonged to her husband, and when she acquired title the dog remained there, and was fed and cared for by her. It was shown to have had vicious propensities, to her knowledge, and on one occasion she interfered to protect it when a person whom it had attacked attempted to strike it in self-defense. She bore the expenses of the household, and, with her husband, constituted the entire family. There is no proof in the record that he had any property there, except the dog, or that he had the care or management of his wife's property, or was in possession of it as her tenant, or assumed to control or direct her with respect to the domestic animals which should be kept upon the place. As stated in Addison on Torts, (Dud. & B. Ed. p. 230,) it is not material in actions of this character whether the defendant is the owner of the dog or not. It is enough for the maintenance of the action that he keeps the dog; and the harboring a dog about one's premises, or allowing it to be or resort there, is a sufficient keeping to support the action. As soon as such an animal is known to be mischievous, it is the duty of the person whose premises it frequents to send it away or cause it to be destroyed. The trial judge charged the jury, in substance, that if the dog was vicious, and Mrs. Battie knew it, and with such knowledge of its viciousness kept and harbored it upon her premises, she was liable for the injury which plaintiff had sustained. It is not denied that this instruction was unexceptionable, unless the defendant was relieved from liability because of the fact that the dog was the property of her husband, and that he lived with her in the house and upon the premises where it was harbored and kept. A vicious domestic animal, if permitted to run at large, is a nuisance, and a person who knowingly keeps or harbors it, and thus affords it a place of refuge and protection, is liable for the maintenance of a nuisance, and for all the damages directly resulting from it. The question, therefore, presented by this appeal, when plainly stated, is whether a married woman, under the laws of this state, has not such freedom of control over her own real property that her husband can, without her consent and against her will, establish and maintain a nuisance upon it. The form in which it here arises most favorable to the appellants is upon their request for an instruction to the jury that the husband is the head of the family, and controls what domestic animals shall be admitted to the household or kept about the house; to which the trial judge responded: ‘I so charge, where the husband is the owner of the property; but, where the wife is the owner of the property, I decline to charge that.’

The married woman's act of 1848 (chapter 200, amended by chapter 375 of 1849) empowered Mrs. Battie to take and hold this real property to her sole and separate use, and to convey and dispose of it, and its rents, issues, and profits, in the same manner and with like effect as if she was unmarried; and declared that it should not be subject to the disposal of her husband, or liable for his debts. There does not seem to be much room for doubt as to the scope and object of this legislation. It effectually removes the common-law disability of the wife, which deprived her of the possession and control of her property during coverture, and, to that extent, it extinguished the common-law rights and powers of the husband. Because it is in derogation of his common-law privileges, it is to be rigidly applied, and not extended by implication beyond its strict letter; but it is also a remedial act, and as to its clearly expressed subject-matter it should have a liberal construction. Full and absolute ownership of all property which the wife might have or acquire, with all its incidents, privileges, and burdens, was evidently conferred upon her by this statute. In the acquisition and enjoyment of such property she shall be deemed to be an unmarried woman. Marital control of it was completely abrogated; not a trace of it was permitted to remain. Her husband is thus placed upon the same footing as a stranger, and has no greater authority than a stranger to impose a burden upon her separate estate, or to restrict or embarrass her in the exercise of exclusive dominion over it. Afterwards came the act of 1860, (chapter 90, amended by chapter 172 of 1862,) which materially enlarged her rights and powers, and, among other things, provided that her property should, notwithstanding her marriage, be and remain her sole and separate property, and might be used, collected, and invested by her in her own name, and should not be subject to the interference or control of her husband. Nor was she left powerless to enforce these newly-acquired rights. Section 3 of the act of 1862, subsequently incorporated into section 450 of the Code, provided that in all matters relating to her separate property she might sue and be sued as if she were sole. She has the same remedies to prevent or restrain her husband from unlawfully interfering with her property as she has against any other person. If he keeps upon her premises a ferocious animal, she...