43 So. 818 | Ala. | 1907
There is, and properly so, a recognized distinction between the liability of the owner for damage done bv,wild animals, or animals ferie naturae, and by those classed as domestic animals. The gist of the action as to damage done by the latter is the keeping of the animal with knowledge of its vicious propensities.
Each count of the complaint avers that the plaintiff was bitten while upon the streets of Attalla by “a wolf of a canine species, a ferocious wild animal.” . The defendant was liable, whether the actual owner or not, if in his possession and control at the time the plaintiff was injured. The trial court did not err in overruling the demurrers to amended counts 6, 7, 8, and 9.
Nor was there, any merit in the demurrer relating to the claim of damages for services of a physician. If a complaint makes out a recoverable right, but contains a claim for nonrecoverable damages, the way to reach the defect is by motion to strike, objection to the evidence, or special instructions to the jury, and not by demurrer.—Woodstock Co. v. Stockdale, 143 Ala. 550, 39 South. 335.
So much of plea 8 as was stricken was no defense to the action, but the facts there set out might go in reduction of the damages.—Besozzi v. Harris, 1 F. & F. 92 (English). It is unnecessary, however, for us to decide1 this point;; for, if the facts therein averred could be received in reduction of the damages, they could have been shown under the general issue, and, if the court erred in striking them from the plea, it was error without injury.
While the evidence shows that Kelly was actually leading the wolf, the defendant Hays was with him, and they were acting in concert. Moreover, there was some evidence that Hays was the ffvner of the wolf. The
The judgment could have been rendered against Hays without a revivor caused by the death of his codefendant, Kellv.' — Section 43 of the Code of 1896; Garrett v. Lynch, 44 Ala. 324.
The judgment of the city court is affirmed.
