Strouse v. Leipf

• Decision Date: 07 February 1894
• Citation: 101 Ala. 433,14 So. 667
• Parties: STROUSE v. LEIPF.
• Court: Alabama Supreme Court

14 So. 667

101 Ala. 433

STROUSE v. LEIPF.

Supreme Court of Alabama

February 7, 1894

Appeal from circuit court, Mobile county; James T. Jones, Judge.

Action by Elizabeth Leipf against Estra Strouse for injuries from the bite of a dog. Judgment for plaintiff. Defendant appeals. Reversed.

The defendant pleaded, in abatement to the complaint, that she was a married woman living with her husband at the time of the alleged injury, and he was the head of the family, and had control of the premises where the dog was kept, and had control of the dog. To this plea the plaintiff demurred on the ground that the matters alleged in said plea did not relieve the defendant from liability for keeping the dog, and the injuries arising therefrom. The court sustained this demurrer. The defendant pleaded the general issue, and the cause was tried on that plea, and a special plea alleging that the complainant teased and irritated the dog, and thus brought the injury on herself. Upon the introduction of all the evidence, the defendant, among others, requested the court to give the following charges, and separately excepted to the court's refusal to give each of them as asked: (6) "Defendant asks the court to charge the jury that if they believe from the evidence that the defendant, Estra Strouse, and Simon Strouse are husband and wife, and resided together as such husband and wife at the time plaintiff was injured by the dog, and that the dog was kept on the premises where they resided, then the husband was the keeper of the dog, and they must find for the defendant." (7) "Defendant asks the court to charge the jury that if they believe from the evidence that defendant was, at the time of plaintiff's injury, a married woman residing with her husband, Simon Strouse, on the premises where the dog was kept, then, in law, the husband was the keeper of the dog and they must find for defendant."

Overall Bestor & Gray, for appellant.

Gregory L. & H. T. Smith, for appellee.

STONE C.J.

This suit was brought by appellee to recover damages for alleged injuries suffered from the bite of a dog. The suit is against Estra Strouse, and the complaint charges that "the defendant kept, and for a long time prior thereto had kept, a dog of savage and ferocious nature, and on, to wit, the 21st day of February, 1891, the defendant so negligently kept said dog that it escaped from the premises and attacked the plaintiff and bit and tore and lacerated her, to her damage in the sum of ***. The plaintiff avers that the defendant had notice of the savage and ferocious nature of said dog prior to the matters hereinbefore complained." The complaint then claims special damages for being thereby disabled to perform customary work, for expense of medical treatment, and for necessary nursing. There is a claim of a specified sum as damages sufficiently large to cover the recovery. There was a demurrer to the complaint, which the circuit court rightly overruled. The defendant interposed a plea, sworn to, which is styled a "plea in abatement." This plea was demurred to, the demurrer sustained, and this ruling is the subject of one of the errors assigned. The plea avers that when the act was done which gave rise to the suit "she was a married woman, the wife of Simon Strouse, who is now living in the city and county of Mobile, state of Alabama; that she was not at said time separated or living apart from the said husband, but they were living together in conjugal and marital relations." This clause of the plea does not negative the idea that the act complained of was solely the act of the wife. At common law this would have been a good ground of abatement. Under that system a suit could not have been maintained against the wife alone, on the facts charged in the complaint in this case. It would have been necessary to sue the husband jointly with the wife. Pinkston v. Greene, 9 Ala. 19. Our statute has changed the common law on this subject. Section 2345 of the Code declares that the husband is not liable for the torts of the wife, "in the commission of which he does not participate; but the wife is liable *** for her torts, and is suable therefor as if she were sole." This has changed the entire law as to the manner of suing a married woman, and has rendered it improper to join the husband when the charge is that the wife herself committed the tort. 14 Am. & Eng. Enc. Law, p. 647, and note 1, on pages 648, 649. The effect of our statute has been to render in large degree, if not entirely, the matter set up in the first part of this plea nonavailing as a defense in abatement. Its whole scope, if available in any conditions, would seem to be confined to its effect as a bar to the action. This plea has another averment, namely: "That the said husband was at said time, prior thereto, and ever since the head of the family and the household, and had control of the said dog, and of the premises where the said dog was kept, and where said occurrence is said to have taken place." This averment is in no sense matter in abatement. If true, it is equivalent to the general issue, is a denial that the defendant kept the dog, and is a perfect bar to the action if made good. Pleas in abatement and pleas in bar cannot be pleaded together, and it may be that the latter averment would be construed as a waiver of the matter relied on in abatement; but we need not decide this. Defendant interposed the plea of the general issue, and under that plea was not only entitled to make all defense she could have made under the plea to which the demurrer was sustained, but she actually introduced proof, and had the jury pass on the identical question she had sought to present by the special plea. This, under all the authorities, cured the error, if any had been committed, in sustaining the demurrer to the latter clause of the special plea.

The doctrine is well settled that the owner or keeper of a domestic animal which is vicious, and prone or accustomed to do violence, having knowledge of such violent disposition or habit, must safely and securely keep such animal, so that it cannot inflict injury. Whether or not there was special negligence in permitting the dog's escape from the premises is not the inquiry. The keeper must, at his peril, safely keep such animal. Such is the condition on which the ownership or custody of known vicious animals is tolerated. Ownership or custody of such vicious animal is not one of the natural, inherent rights of property. It is a qualified or restricted right,-qualified by the condition that the animal can be, and is, safely confined and kept. Cooley, Torts, 343 et seq.; 1 Add. Torts, § 261; Whitt. Smith, Neg. 99; 2 Shear. & R. Neg. §§ 628-631; The Lord Derby, 17 F. 265; 1 Am. & Eng. Enc. Law, p. 581; Garlick v. Dorsey, 48 Ala. 220; Nolan v. Traber, 49 Md. 460. Previous knowledge of the animal's vicious habits must be alleged and proved. But positive proof is not always necessary. It may be inferred from circumstances. But the knowledge of the vicious habits of an animal need not refer to circumstances of exactly the same kind. All that the law requires to make the owner or keeper liable is knowledge of facts from which he can infer that the animal is likely to commit an act of the kind complained of. 1 Am. & Eng. Enc. Law, p. 582, and note.

The pivotal question in this case is whether Mrs. Strouse, the wife of Simon Strouse, living in the same house and in marital relations with him, can, under the facts of this case, be adjudged guilty of the tort complained of. Let us first ascertain precisely what was done which led to plaintiff's alleged injury, or sheds light on the circumstances attending it. We premise that what is here stated is proved by all the testimony bearing on the question or questions, without a shade or semblance of conflict: The house and premises in which Mr. and Mrs. Strouse lived together as husband and wife was the property of Mrs. Estra Strouse, the defendant in this suit. They lived there as husband and wife, having their children around them, and had lived at the same place for many years. A dog had for years been on the premises, not otherwise confined than by the inclosure of the lot. In the daytime, when neither Mrs. Strouse nor her husband was at home, the dog escaped through the back gate of the lot, and inflicted the injury complained of, in an open, public alleyway which extended across, from street to street, at the rear of the premises. No special act of negligence-in fact, no direct agency-is charged either against Simon or Estra Strouse, in immediate connection with the escape of the dog at the time it took place. The immediate cause, according to the testimony, was the act of a visiting stranger. But, as we have shown above, negligence in permitting the dog to escape from the inclosure was not essential to the maintenance of this action. The fault and liability for the injury which ensues are established according to legal requirements, when it is shown that a vicious animal, prone, and known to be prone, to inflict personal injuries, is kept, and such animal escapes from confinement and inflicts injury. This constitutes an actionable tort, perpetrated by the keeper of such animal. That there was testimony tending to prove the vicious, if not dangerous, nature and temper of the dog, and tending to charge his keeper with a knowledge of such his evil disposition, cannot be gainsaid. A verdict finding such to be the fact could not be set aside as unsupported by testimony. The testimony as to the ownership, custody, or keep of the dog was as follows: Plaintiff testified: "It was Mrs. Strouse's dog. She would go to the butcher wagon, and ask for meat for the dog. She got the dog from Mr. Hayes, who is now dead. I heard Mrs. Strouse say that...