Snyder v. Patterson

Opinion by Mr. Justice Williams, The learned judge of the court below made no mistake in refusing the defendant’s first point. This point asked an instruction to the effect that the defendant was not liable in the action if he did not own the dog that committed the injury. The fact assumed did not support the legal conclusion sought to be drawn from it. The defendant, although not the owner of the dog, might make himself liable to others, as owner, by knowingly keeping or harboring the animal upon his premises after knowledge of his vicious propensities. The important questions in this case were therefore whether the defendant did harbor the dog upon his premises, and whether he knew of his bad temper and propensity to bite before the injury to the plaintiff was inflicted. These were questions for the jury which upon the facts of this case were properly submitted. The several assignments of error relating to these subjects are therefore overruled. The sixth assignment is to an instruction contained in the general charge, which was in these words: “ The question for you is simply, was or was not this dog kept on defendant’s premises with defendant’s knowledge and consent, so that the defendant’s property was the dog’s home ? ” The context shows that the jury was instructed that if they answered this question in the affirmative the defendant was liable precisely as an owner would be. This was right upon the circumstances of this case. The injury complained of was inflicted by the dog in the immediate vicinity of the defendant’s premises. The owner was a young boy of about fourteen years who lived with the defend [102] ant. His mother was the defendant’s sister and housekeeper. The boy was a member of his family therefore, to whom he stood in some sense loco parentis. The dog had been given to the boy some two years before this accident took place, and had been brought by him to the defendant’s home and there kept with his knowledge and consent. Upon these facts the question we are considering was entirely proper. We do not wish however to be regarded as assenting to any general rule that the owner of the premises on which a dog may be harbored is liable for its vicious acts regardless of the age, employment, or home of its owner, or the circumstances under which the injury was inflicted. The question of liability must depend on the circumstances in each case, and no general rule can be laid down depending solely on the answer to the question embodied in this assignment of error, “ Was or was not this dog kept on defendant’s premises with defendant’s knowledge and consent, so that the defendant’s property was the dog’s home ? ” If injustice has been done in this case it is the jury and not the learned trial judge by whom it has been done. The judgment is affirmed.