Woolf v. Chalker

Butler, J. The rule applicable to actions founded upon the negligence of the defendant, “ that if the negligence of the plaintiff essentially contributed to the injury he can not recover,” is too well settled to be questioned; but it is not applicable to this case. There is but one count in this declaration, and that is framed upon a statute, which enacts that “ whenever any dog shall do any damage, either to the body or property of any person, the owner, &c., shall pay such damage, to be recovered in an action of trespass.” This statute is clear and comprehensive in its terms; and if it is literally construed, it imposes an obligation on the owner, &c., of every dog, to pay for any and all damage it may do of its own volition, and when the owner does not set him on and become thereby liable to be sued as for a personal trespass; and the questions made in the court below in bar of the action, relative to the character of the dog, the supposed trespass of the plaintiff, and the negligence of either party, were immaterial. The act extends the liability of the owner of a dog beyond that existing at common law, hut no good reason has been urged, and we know of none, why the intention of the legislature should not be holden to have been what the language imports; and there is very clear evidence, derived from the state of the common law as it then stood, the mischief which occasioned the passage of the act, and the general policy of the state indicated by its legislation relative to dogs, that such was their intention. As the law in relation to this animal is peculiar, and there was evidently a misapprehension on the trial in respect to the effect of the statute and the applicability of the common law doctrines of negligence and scienter, and such misapprehension has been before observed, we think it well to give the subject a somewhat extended consideration. At common law property in a dog, though recognized, has always been held to be “ base,” inferior, and entitled to less regard and protection than property in other domestic animals. Three reasons may be assigned for this. First, “ dogs do not serve for food,” and for that reason “ the law held that they had no intrinsic value,” and “ therefore ” says Blackstone, (Yol. 4th, 286,) “though a man may have a base property — 128 — therein, and maintain a civil action for the loss of them, yet they are not of such estimation as that the crime of stealing them amounts to larceny.” Although since protected by express statutes from theft, the common law estimate of property in them has never been changed. Second, because the dog, in common with the class of wild animals to which he originally belonged, is subject to the most distressing and incurable disease known, which he is inclined to communicate, and frequently, if not destroyed, does communicate, by his bite, to animals and mankind. Eor that reason any person, without regard to any right of property in the owner, may kill a mad dog, or one that is justly suspected of being mad, and stand justified at common law and by our statute. Rev. Stat., tit. 3, sec. 73. So, according to modern decisions, he may be killed by any person, if known to have been bitten by a mad dog, although the same rule would not be applied to other more useful and less dangerous animals. Putnam v. Payne, 13 Johns., 312. And the third reason is, that the dog is chiefly propagated, kept and used for purposes, (viz., hunting, and the protection of the family, person and property of his owner,) which require that he should retain in some degree the natural ferocity and inclination to mischief which characterize him. Thus kept, trained and used, he is liable to become mischievous, and injure the property of others — noisy, and a private nuisance — -ferocious, and accustomed to bite persons, and therefore dangerous to the community and a common nuisance; and these three characteristics impose corresponding obligations upon his owner, and give correspond ing methods of redress for an injury committed by an action or by the destruction of the animal, or both. 1st. As to injury to property. If a dog becomes mischievous and inclined to injure the property of others, “ his owner is bound to restrain him on the first notice ; ” and liable for any mischief he may thereafter do to property of any kind. This is elementary law. So, although a dog can not by entering alone on the land of another and doing mischief, subject his owner to the action of trespass quare clausum, as cattle and other animals which are naturally inclined to rove, and winged ani — 129 — mals that prey upon the crops, may do, yet if the owner trespass, and while on the land his dog unbidden and against his will does mischief, that action will lie for the injury. 1 Chi tty Pl., 71; Beckwith v. Shordike 4 Burr., 2092; Van Leuven v. Lyke, 1 Comst., 515. And so, whether before mischievous or not, or whether, if so, his owner has knowledge of his disposition or not, if actually found doing mischief or attempting to do it alone, out of the possession of his owner or the charge of a keeper, he may be killed, and the act justified at common law. Barrington v. Turner, 2 Levinz, 28 ; Protheroe v. Mathews, 5 Car. & P., 581. And this also by statute in this state. Rev. Stat., tit. 3, § 73. And so he may be destroyed under any circumstances where it is absolutely necessary for the preservation of property. Janson v. Brown, 1 Campb., 41; Welts v. Head, 4 Car. & P. 568. Other animals may become vicious and inj ure persons or property, and the injured person may have his action, but may not kill them ; and the discrimination against dogs results legitimately from their proneness to mischief, their uselessness and liability to hydrophobia, and the consequent base character of property in them, and the necessity for that protection, inasmuch as the right to an action quare clausum is limited to one or two cases only, and no action at all can be had at common law for the first mischief, or without proving a scienter. 2d. The dog is a noisy animal, and may in that way become a nuisance and be destroyed. Thus, it has been holden that a dog which is in the habit of haunting the dwelling house of another by day and night, and by barking and howling disturb the peace and quiet of its inmates, and can not be otherwise prevented, may be killed ; although a wanton destruction of a dog may not be justified. Brill v. Flagler, 23 Wend., 354. Whether dogs kept on the premises of their owner, may by their noise become nuisances to adjoining proprietors, and subject their owner to action for a nuisance, seems to be an open question. An elementary writer says they can not, (1 Hilliard on Torts, 2d ed., 644,) on the authority of Street v. Tugwell, 2 Selw., N. P., 1047, where an action was brought for keeping a kennel of pointers so near to the plaintiff’s dwelling-house as to — 130 — disturb his family during the day time, and prevent them from sleeping in the night, and there was a verdict for the defendant. But that case has been doubted. It has been remarked that Lord Kenyon in refusing a new trial intimated that if the nuisance was continued, a new action could be brought, which was an intimation that an action could be maintained; and Judge Nelson, in Brill v, Flagler, supra, plainly intimates that the decision is not a correct exposition of the law. And if the noise of a boiler manufactory, (Fish v. Dodge, 4 Denio, 311,) or a steam engine, (Davidson v. Isham, 1 Stockton, 18fi,) may be a nuisance, a fortiori should a kennel of pointers who disturb the sleep of a family be, for undisturbed sleep is not merely a comfort, it is absolutely necessary to health. 3d. If the dog be ferocious and accustomed to bite mankind, the law is still more stringent in respect to the duty and liability of the owner, and the right of others to destroy it. Thus a ferocious dog accustomed to bite mankind is a common nuisance, and may be destroyed by any one. Barrington v. Turner, 2 Levinz, 28; Brown v. Carpenter, 26 Verm., 638; Dunlap v. Snyder, 17 Barb., 561; 1 Hilliard on Torts, 2d ed., 645. In England, if the owner permit him to run at large upon the highway, he is indictable for a misdemeanor. Burns’ Justice, 578. And if sued for the killing of such a dog, the defendant need not allege or prove a scienter. Maxwell v. Palmerton, 21 Wend., 407. The keeping of such a dog is wrongful and at the peril of the owner, and therefore prima facie the owner is liable to any person injured by such a dog, without any averment or proof of negligence in securing or taking care of it, and irrespective of any question of negligence of the plaintiff. May v. Burdett, 9 Ad. & El., N. S., 101; Card v. Case, 5 Mann. Grang. & Scott, 622. It has been doubted whether in respect to such a dog the owner could plead the willful misconduct of the plaintiff, after warning, as contributing to the injury, even if it was the sole cause of it. May v. Burdett, supra. “ It may be,” says Lord Camden in that case, “ if the injury was solely occasioned by the willfulness of the plaintiff after warning, that may be a ground of defence by plea in confession and avoidance,” and — 131 — it would seem that if the plaintiff have knowledge oi^ae ferocity of the animal, and provoke him willfully, he should be considered to have purposely brought the injury on himself, and be left to bear it, although the owner of the dog be in the wrong in keeping him. 1 Hilliard on Torts, 2d cd., 652. It was holden expressly by Oh. Justice Lee, in Smith v. Pelch, 2 Strange, 1264, that the owner of such a dog was liable when he was accidentally trodden upon as he was lying at the owner’s door and bit the person, for, said the Chief Justice, “ it ” (the injury) “ was owing to his ” (the owner) “ not hanging the dog on the first notice. And the safety of the king’s subjects ought not to be afterwards endangered.” A like verdict was had where such a dog was irritated by a child and bit it. And when the owner of such a dog has permitted him to run at large, on his own premises, and a trespasser has been bitten by him, the owner has been holden liable. Loomis v. Terry, 17 Wend., 496 ; Sherfey v. Bartley, 4 Sneed, 58. The principles which underlie these decisions relative to a ferocious dog were fully discussed by the late Judge Sherman, and adopted by this court, in Johnson v. Patterson, 14 Conn., 1, which was an action brought against a defendant for placing poison upon his own land, so that it could be and was taken by the plaintiff’s fowls which were trespassing. A man may not, in this country, use dangerous or unnecessary instruments for the protection of his property against trespassers. Such instruments may be used in England, but the principles on which their decisions purport to rest are not sustainable or applicable here. The true principles of the common law are recognized here, and a man may use that force which is necessary to protect his property and no more. And he may keep and use such instruments and no other, as the same necessary degree of force will justify. A dog is an instrument for protection. A ferocious one is a dangerous instrument, and the keeping him on the premises to protect them against trespassers is unlawful, upon the same principle that setting spring guns, or concealed spears, or placing poisonous foodis unlawful. This review shows that the defendant in this case would have been liable at common law, if the action had been — 132 — brought in that form. The court found that the dog was ferocious, accustomed to bite, dangerous, and an improper animal to be kept for protection in the day time, and that the defendant knew it. The defendant had no right to keep such a dog for any purpose, unless in an enclosure or building, in the night season, and cautiously, as a protection against criminal wrong doers, nor then perhaps, if his size and ferocity were such as to endanger life, as a protection against any thing but a felony “ by violence or surprise.” Certainly he could not keep him on his premises in the day time in such manner that a person by accident, mistake, or a voluntary or involuntary trespass, might be exposed to his fury and be injured. In this case if the plaintiff was a trespasser at all, he was so unintentionally, involuntarily, and by mistake. In Beckwith v. Shordike, 4 Burr., 2092, it was holden that such a trespass might be justified. However that may be, the common law clearly protects a trespasser against & ferocious dog. - And this review of the common law will serve to show that the statute, literally construed, does not go a great way beyond it. In respect to a mischievous dog, it makes the owner liable for the,first injury to property, and without regard to his knowledge of a mischievous propensity. And in respect to a ferocious one, it extends the liability of the owner to every injury to the person, whether the owner knew of his ferocity or not, unless committed in protection of his master’s premises against a felony. That it was the purpose of the law thus to extend protection to persons and property, further and conclusively appears from an examination of our legislation respecting the animal. The owners of dogs have often been heavily taxed for them, and authority given to kill them if the taxes were not paid; and if running at large without a collar they may be killed by any one. We have seen that by statute any person may kill them if found at large doing mischief. In 1732 an act was passed, providing that when any contagious disease broke out in any town, in order to prevent the spreading of it by dogs, they should all be killed by their owners, and if they did not kill them any person might do it. In 1736 it was enacted — 133 — that if any sheep were killed, and it was not known by what dogs, and complaint should be made on suspicion to the selectmen or sheep master, and there was great reason for suspicion, they might order the dogs to be killed ; and that the owners of such suspected dogs should be liable to pay for the injury, unless they could prove that their dogs did not do the mischief; thus not only depriving the owners of their property in the suspected dogs, but making such suspicion a prima facie ground of liability for the value of the sheep. That law was in force when the statute in question was passed, and until the revision of 1821. In 1765 an act was passed, reciting in the preamble that much mischief had been done by dogs, and that the hydrophobia was prevalent, and authorizing the selectmen of towns to make rules, orders and regulations for confining, restraining, killing and destroying them, and providing penalties for enforcing such orders. This power was subsequently, in 1798, transferred to two justices, and in 1853 like power was given concurrently to towns, and thus it remains. In 1789 an act was passed making the owners of dogs liable for all damage they might do to sheep, “ although such ovmer or owners may not have known such dog or dogs to be accustomed to do such mischief ” — thus abrogating the common law doctrine of scienter. Nine years afterwards, in 1798, the statute in question was passed, abrogating it as to persons and property generally, and both remained on the statute book till the revision of 1821, when that expressly relating to sheep was omitted, and the general and comprehensive one of 1798 retained. It is not to be supposed that the revisors or the legislature of 1821 intended to withdraw any protection from sheep; or that they deemed them more entitled to it than men, or that the change was made in favor of property in dogs ; or for any other reason than because they were engaged in the work of simplifying and condensing the laws, and thought the statute in question broad enough to cover the whole ground, and therefore omitted the others. A new trial is not advised. In this opinion the other judges concurred.