Holt v. Leslie

Wood, J., (after stating .the facts). (1) The appellant, Missouri & North Arkansas Railroad Company was. in the hands of receivers, and the agents, through whose negligence appellee alleges his injury was received, were the agents of the other appellants and the appellant railroad company had no control over them. The appellant railroad company is, therefore, not liable. Memphis & Little Rock Railway Co. v. Stringfellow, 44 Ark. 322; Ark. Cent. Ry. Co. v. State, 72 Ark. 250. The judgment against the appellant railroad company is reversed and the cause, as to it, is dismissed. Agent Warner, who was in charge of the depot at Leslie, was the agent of the .express company and the receivers, whom we will, for convenience, hereafter treat and designate /as the appellants. They were maintaining the depot building in conjunction for the transaction of their business. The court, .among others, gave the following instruction : “It was the duty of the defendants using said depot to use ordinary care to keep it in a safe condition for the benefit of those who had a legal right to go upon said depot premises, and I instruct you that one having business to transact with the defendants, or either of them, had a legal right to go to the said depot, and I instruct you that if from the preponderance of the testimony that the said John Leslie bad /business to transact with said defendants, or either of them, that he had a legal right to go to .said depot; and if you find from /a preponderance of the testimony that the said Jo'hn Leslie was injured while upon the premises of the said defendants, and that it resulted from the failure of the said defendants to use ordinary care to keep said depot in a safe condition, then you will find for the plaintiff.” (2) The court gave other instructions which, in effect, told the jury that if the appellants, the receivers and the express company, knew that the dog was vicious and dangerous, and, with such ¡knowledge, kept the dog in the depot building whereby the appellee received the injury of which he 'Complained then the appellants would be liable. (3-4) These instructions considered together, as they /must be, were not prejudicial to appellants. The court properly instructed the jury under the evidence, on the question as to whether or not the receivers had exercised ordinary care to keep the depot building in a safe condition for those who had business to transact with them. See St. Louis & S. F. Rd. Co. v. Grider, 110 Ark. 437. Warner was the agent of both appellants. In maintaining the depot and in carrying on their business, his knowledge, therefore, was the knowledge of the appellants. Whether or not the dog was a vicious and dangerous one, and whether or not the agent, Warner, knew that he was a vicious and dangerous dog were issues of fact for the jury to determine. There was evidence to warrant a finding 'that the dog was vicious /and dangerous, and that appellant’s agent knew .of this fact. There was testimony also to warrant a finding to the effect that, knowing the vicious disposition of the dog, the appellant’s agent was negligent in not keeping him restrained or in not removing him from the depot in such manner as to prevent injury to those who had legitimate business to transact with appellants and who were injured while about such business, and therefore that the receivers were negligent in not beeping the depot in a safe condition. The appellants complain because the court refused to give the following prayer for instruction: “You are instructed that .the liability of 'an express company is not the same as that of an owner, because the company were bound by their contract to take and transport the deg .and keep it a reasonable time to deliver ever to the consignee, and -are not presumed to be liable because they kept or harbored the deg, as an absolute owner would do.” This instruction was not applicable bo the facts of the case and was calculated to confuse and ¡mislead the jury. The general doctrine as to the owners of domestic animals is as follows: (5) If one knowingly keeps a vicious or dangerous domestic animal, one accustomed to bite mankind, he is liable for injuries done by such animal, without proof of negligence as to the manner in which the animal was kept and handled. The mere keeping of such an animal, knowing its vicious and dangerous qualities, is at the risk of the owner (except as to trespassers) 'and renders him liable in damages to one injured by such animal. Without any proof of negligence, the owner of such an animal, having knowledge of its vicious and dangerous propensities, will be held liable in damages for injuries done by it. See 1 Ruling Case Law, “Animals,” § § 33 and 59, and eases in note. 2 Cyc. 368 and note. Scienter in such eases is the basis of liability. F. F. Harris v. Carstens Pk. Co., 86 Pac. 1125, 6 L. R. A. (N. S.) 1164, and note. (6-7) ■ The prayer for instruction ignored the evidence on the part of the ¡appellee which tended to prove that the dog was vicious and dangerous and that the appellants knew of that fact. The express company was a bailee for hire of the dog, and proof of scienter on its part brings it within the general doctrine above stated. Having in its possession the animal and knowing its vicious propensities, ¡as the jury were warranted in finding, the express ¡company was as responsible for its safe keeping and was to the same extent liable for injuries inflicted by the dog as if it had been the owner thereof.. “One who has charge of a vicious 'dbg, whether as owner or ¡bailee, knowing him to be vi'dions, must restrain him and if he fails to do so will be liable in damages to any .person injured thereby.” Marsel, by next friend, v. Bowman, 62 Iowa 57. See also, Frammell v. Little, 16 Ind. 251. The appellants contend that the court erred in refusing to grant prayers on their part submitting to the jury the question as to whether or not the uncrating of the dog iand the manner of. keeping 'and handling the same by agent Warner was within the scope of his employment and the line of his duty. But the court did not err in refusing to grant these prayers, as they were abstract, and, under the evidence, such prayers would have been confusing. (8-9) There, was no testimony to warrant the court in submitting to the jury the issue as to whether the agent, Warner, in the manner of keeping and handling the dog, was acting within the scope of his employment. The evidence shows that the consignment had not been delivered. The express company still had the dog in its keeping at the depot, .and necessarily had to keep ■same so as not to cause injury to those who had business to transact with it. All these matters were proper too for the consideration of the jury on the issue as to whether or not the receivers were negligent in not maintaining the depot in a safe condition. There was no testimony to warrant the court in submitting to the jury the issue as to whether or not the agent, Warner, in his manner of handling the dog, was acting on his own responsibility and not as agent of the appellants. In Ms manner of handling the dog while the same was in the depot and undelivered to the consignee, the receivers were liable for failure upon his part to exercise ordinary care to see that the depot building was maintained in a safe condition for those of the public who might have business with them. (10) The express company having knowledge of the vicious and dangerous propensities of the dog, would be liable, as bailee for hire, for the injuries inflicted under the rule above stated, and the receivers would he lialhle because they owed appellee the duty to exercise ordinary care to maintain the depot in a safe condition, which would involve the duty of protection against the danger caused iby the failure of the express company to restrain the dog. See St. Louis, I. M. & S. Ry. Co. v. Shaw, 94 Ark. 15. (11) The appellants contend .that the act of the son of the lagent in removing the dog from the orate and of the agent himself in consenting for the dog to be taken from the .depot was not within the line of the agent’s duty, and that therefore .appellants are not liable and they cite Baker v. Kinsey, 38 Cal. 631, 99 Am, Dec. 438. In that case Baker sued Dyer and Kinsey to recover damages for personal injuries sustained from the bite of .a vicious dog- and recovered judgment against them. The testimony showed that Dyer was employed as keeper and collector of a toll bridge. Kinsey, Ms employer, was one of the proprietors of the bridge, and Dyer, without the knowledge or consent of Kinsey, procured a dog, wMle a pup, and kept Mm at the bridge as a companion because he had a fancy for dogs. The dog was vicious and .accustomed to bite mankind. He was not securely kept and was suffered to go at large, without guard or muzzle. His disposition was known to Dyer, but Kinsey never heard of the dog. The Supreme Court held that it was' not shown that the dog had been put there under Kinsey’s direction, and the nature of Dyer’s employment was not such as to authorize or reqMre it to be put there, and therefore reversed the judgment as to Kinsey. The facts clearly differentiate that case from this. There it was not the duty of Dyer to have and keep the dog. Here, as the agent of the express company, Warner was required to have and keep the dog, and, having knowledge of his vicious and dangerous habits, to keep him restrained. As the .agent of the receivers it was the duty of Warner to exercise ordinary care to see that the depot was kept in a safe condition. So as the agent of appellants Warner was acting strictly within the line of his duty in the manner in which he kept and handled the dog. The judgment is correct and it is theref ore affirmed.