Staetter v. McArthur

• Decision Date: 11 December 1888
• Parties: JOSEPH T. STAETTER, Respondent, v. PETER MCARTHUR, Appellant.
• Court: Missouri Court of Appeals

33 Mo.App. 218

JOSEPH T. STAETTER, Respondent, v. PETER MCARTHUR, Appellant.

Court of Appeals of Missouri, St. Louis.

December 11, 1888

Appeal from the St. Louis City Circuit Court. --HON. GEORGE W LUBKE, Judge.

REVERSED.

Truman A. Post and Henry M. Post, for the appellant.

To entitle plaintiff to a verdict, the burden was upon him to prove, from the evidence, tat defendant's dog had a propensity to bite mankind, and that, prior to the injuries complained of, defendant had notice of such fact. Sarch v. Blackburn, 4 Carr & P. 300; Hogan v Sharpe, 7 Carr & P. 755; Spring Co. v Edgar, 99 U.S. 654; Worth v. Gilling, 2 L. R. C. P. 3; Keitling v. Eagan, 65 Ill. 235; Line v. Taylor, 3 Fost. & Finl. 731; Shearm. and Redf. Negl. sec. 191; Beck v. Dyson, 4 Campb. 199; Mason v. Keeling, 12 Mod. 332; State v. Donahue, 26 Am. Law Reg. [N. S.] 769; 37 Alb. L. J. 338. The testimony for plaintiff in this regard must be that from which the jury has a right to infer that the dog was vicious, and that defendant knew his propensity. Improvement Co. v. Munson, 14 Wal. [U. S.] 448; Pleasants v. Fant, 22 Wal. 122; Comm'rs v. Clark, 94 U.S. 284; Merchants' Bk. v. Bk., 10 Wal. 637; Powell v. Railroad, 76 Mo. 83-4; Morgan v. Durfee, 69 Mo. 476; Jackson v. Hardin, 83 Mo. 186; Landis v. Hamilton, 77 Mo. 562; Nolan v. Shickle, 3 Mo.App. 308-10; O'Donnell v. Railroad, 7 Mo.App. 193; Jewell v. Parr, 13 C. B. 913; Toomey v. Railroad, 3 C. B. [N. S.] 149-50. There was no testimony authorizing any such inference by the jury. And for that reason the court erred in refusing defendant's motion for a nonsuit at the end of plaintiff's case, and after verdict, the trial court should have set it aside. And its failure to grant defendant's motion for new trial was manifest error.

August Rebenack, for the respondent.

From the testimony it was proper to submit the case to the jury and the jury had the right to infer, and did infer, from the facts thus proven: (1) That the dog was vicious; (2) that the defendant knew its propensity; (3) that the defendant was negligent in suffering such a dog to run at large on his premises. State v. McDermott, 4 Cent. Rep. 559. The plaintiff's right to recover is not alone based upon the duty of defendant to restrain an animal known by him to possess the vicious propensity to bite, but also on the duty of the defendant to restrain it, if from its character or previous conduct a prudent man under the same circumstances would take such precaution. Rumsey v. Nelson, 2 N.E. 63. When circumstances clearly demand precautionary measures and an accident arises from an omission of them, this is want of ordinary care and amounts to negligence for which he is liable to the person sustaining an injury in consequence thereof. Norris v. Kholer, 41 N.Y. 42; Siemers v. Eisen, 54 Cal. 418; Gray v. Railroad, 65 N.Y. 561; Tel. Co. v. Quinn, 56 Ill. 319.

OPINION

ROMBAUER P. J.

The plaintiff, who was driver of a grocery deliverywagon, entered the defendant's yard for the purpose of delivering some groceries which the defendant had ordered. While depositing them on a table standing on the rear porch, he was bitten in the knee by the defendant's setter dog, who was running at large on the premises. None of the inmates of the house were on the premises at the time. The plaintiff thereupon brought this action against the owner and keeper of the dog, and upon trial before a jury recovered a verdict for fifty dollars, which, taking plaintiff's injuries into consideration, was moderate. The defendant's main complaint on this appeal is that the court refused his instruction in the nature of a demurrer to the evidence.

The foundation of this action is negligence. Whatever our individual views may be as to the principles which should govern the owner's liability, who keeps a dog running at large on his premises in a populous city, the law is too well settled to admit of any dispute. In order to make the owner of an animal mansuete naturae responsible for injuries inflicted by such animal, evidence of the prior mischievous disposition of the animal, and of the owner's previous knowledge of such disposition, are essential.

Judge Selden in the leading case of Earl v. Van Alstine, 8 Barb. 630, thus formulates the rule: " 1. That one who owns or keeps an animal of any kind becomes liable for any injuries the animal may do only on the ground of some actual or presumed negligence. 2. That it is essential to the proof of negligence, and sufficient evidence thereof, that the owner be shown to have had notice of 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."

" The formula," says C. J. Redfield, in Godeau v Blood, 52 Vt. 254, " used in the text-books and in the forms given for pleadings in such cases, accustomed to bite, does not mean that the keeper of a ferocious dog is exempt from all duty of restraint until the dog has effectually mangled or killed one person. But as he is held to be a man of common vigilance and care, if he had good reason to believe, from his knowledge of the ferocious nature and propensity of the dog, that there was ground to apprehend that he would under some circumstances bite a person, then...