57 Md. 606 | Md. | 1882
delivered the opinion of the Court.
At the trial of this case in the Court below, an instruction was granted, at the instance of the defendant, that there was no evidence legally sufficient to entitle the plaintiff to recover; and the verdict and judgment being in favor of the defendant, the plaintiff appealed, and the only question presented for our consideration is, whether there was any evidence offered by the plaintiff legally sufficient to be left to the determination of the jury.
The suit was instituted to recover from the defendant, damages for the loss of the services of the plaintiff’s son, who had been bitten by the defendant’s dogs, and for medical attendance and medicines which were rendered necessary by the son’s injuries. It was proved that the defendant, who lived in a thickly settled neighborhood, and was a blacksmith, kept two dogs, a large New Found-land and a small terrier, for the protection of his property, and that he kept them tied during the day, and turned them loose in his yard at night. It was also proved that the defendant sold milk to some of his neigh
The defendant said that he tied the dogs every morning, but that he had remained later in bed that morning, and therefore, had not tied them as early as usual. David Price proved that he had worked for defendant two months in the spring of 1880, and that defendant had two dogs, which he kept tied during the day, but that he did not know what he did with them at night, as witness was not there at night, nor did he know for what reason they were ■ so kept tied. He also proved that when he first went to
In order to render the owner liable in damages to any one bitten by his dog, it must be proved not only that the dog was fierce, but that his owner had knowledge that he was fierce. To this effect are all the authorities. See Cord vs. Case, 57 Eng. C. L. Reps., 622 ; Hogan vs. Sharpe, 32 Eng. C. L. Reps., 720; Beck vs. Dyson, 4 Camp., 108; Thomas vs. Morgan, 2 Camp., Mees, & Roscoe, 496; Brock vs. Copeland, 1 Espinasse, 203; Sarch vs. Blackburn, Moody & Malkin, 505. And to the same effect are the cases cited in the appellant’s brief, and he admits the law so to be. But he contends that the question asked by defendant’s wife of her daughter “why she had not tied the dogs,” and her direction to her to tie them, was evidence that the wife knew that the dogs were fierce, and that her knowledge of that fact ought to be imputed to her husband. He also contends that as. the defendant’s daughter invited the plaintiff’s son into the yard, and told him that she would not let the dogs bite him ; drove them into the shop and had charge of the milk department;
Nor is there any evidence to prove that defendant’s, wife had any knowledge that the dogs were fierce and vicious, further than what may he inferred from what she said to her daughter, after finding that the dogs had attacked and bitten the boy. She may have very naturally asked her daughter why she had not tied the dogs, and given her directions to tie them, without having had any previous knowledge that they would bite. But even if she had had such knowledge, her knowledge could not be imputed to the defendant. In the case of Gladman vs. Johnson, 15 Law Times, U. S., 476, it was held that where a wife assisted her husband in his milk business, and a.
But we think the appellant is right in his contention that the defendant may be presumed to have had a knowledge that his dogs were fierce and dangerous, from the fact that he was accustomed to keep them tied during the day-time. In Perry vs. Jones, 1 Espinasse, 452, Lord Kknyost held that, from the fact that the owner kept his dog tied and did not permit him to run at large, it must be presumed that he had knowledge that the dog was vicious, unruly and not safe to be permitted to go abroad. And in Buckley vs. Leonard, 4 Denio., 501, it was held that the fact that the owner usually, in the day-time kept his dog confined, and in the night kept him in his store, was evidence that he was fully aware that the safety of his neighbors would be endangerd by allowing him to be at large. So, in the case now before us, we think that the fact that the appellee kept his dogs tied during the day and let them loose at night, furnishes proof that he knew it would endanger his neighbors to permit them tobe unfastened. His statement that the dogs had not been chained at an earlier hour, on the day the boy was bitten, because he, the appellee, had remained in bed later that day than usual, is also proof tending to show that he knew that it was unsafe to permit them to be unchained at a time when it was likely that persons would be visiting his house; and he also knew that this very boy was in the habit of coming to his house about that time of the day
Judgment reversed,, and neiu trial ordered.