McCullar v. Williams

116 So. 137 | Ala. | 1928

Before plaintiff would be entitled to recover in this case, she would not only have to show that the dog was vicious, but also that plaintiff had knowledge of that viciousness. Charges 1, 2, 3, and 4 should have been given. Ala. Fuel Iron Co. v. Bush, 204 Ala. 658, 86 So. 541. Counsel argue other questions, but without citing additional authorities.

Curtis, Pennington Pou, of Jasper, and Roy Mayhall, of Haleyville, for appellee.

Counts 2, 3, and 4 were sufficient. Kitchens v. Elliott,114 Ala. 290, 21 So. 965; Durden v. Barnett, 7 Ala. 169; Strouse v. Leipf, 101 Ala. 433, 14 So. 667, 23 L.R.A. 622, 46 Am. St. Rep. 122; Ala. F. I. Co. v. Bush, 204 Ala. 661, 86 So. 541; Code 1923, § 5678. Defendant had the benefit of pleas 3 and 4 under the plea of the general issue. Quisenberry v. Grant,20 Ala. App. 576, 104 So. 284. Illegal testimony may be rebutted by the same kind of testimony. Bank of Phœnix v. Taylor,196 Ala. 665, 72 So. 264; Lockridge v. Brown, 184 Ala. 106,63 So. 524; Havis v. Taylor, 13 Ala. 324; Ford v. State, 71 Ala. 385; Gordon v. State, 129 Ala. 113, 30 So. 30; Longmire v. State, 130 Ala. 66, 30 So. 413; Gibson v. Gaines, 198 Ala. 583,73 So. 929; Ala. F. I. Co. v. Bush, supra. Appellant is the owner of a dog of considerable size that attacked appellee while she was walking along the public highway in front of the home of appellant, biting her, and causing her to fall and break her leg, and to recover damages suffered thereby this suit was instituted, resulting in a verdict and judgment in favor of appellee in the sum of $400.

Demurrer to count 1 was sustained, but overruled as to counts 2, 3, and 4.

It is the well-recognized rule that ownership of vicious animals is not one of the natural, inherent rights of property. "It is a qualified, or restricted right. Qualified by the condition that the animal can be and is safely confined and kept. * * * Previous knowledge of the animal's vicious habits must be alleged and proved; but positive proof is not always necessary. It may be inferred from circumstances. But the knowledge of the vicious habits of an animal need not refer to circumstances of exactly the same kind. All that the law requires to make the owner or keeper liable is knowledge of facts from which he can infer that the animal is likely to commit an act of the kind complained of." Strouse v. Leipf,101 Ala. 433, 14 So. 667, 23 L.R.A. 622, 46 Am. St. Rep. 122.

The demurrer to counts 2, 3, and 4 was properly overruled. Strouse v. Leipf, supra; Kitchens v. Elliott, 114 Ala. 290,21 So. 965; section 5678, Code of 1923.

Under the plea of the general issue, the defendant received the full benefit of pleas 3 and 4, the averments of which were provable thereunder. There was, therefore, no reversible error in sustaining the demurrer to these pleas.

The judgment of the court followed the verdict of the jury. The evidence was sufficient for submission to the jury both upon the question of the vicious and dangerous character of the dog, and knowledge thereof on the part of defendant, the owner, and, indeed, no question was presented in the court below testing the sufficiency in that respect. Assignments of error 6 and 7 are without merit.

Assignments of error 10, 11, 12, and 13 rested upon the refusal of charges requested by defendant, and the argument of appellant in support thereof is to the effect that defendant must have had notice or knowledge of the danger of the dog as a vicious animal attacking some one in the public highway as distinguished from the premises of defendant. The house of defendant where the dog stayed was a few feet from the public highway, and there was no fence or other inclosure. As said by the court in Strouse v. Leipf, supra:

"Knowledge of the vicious habits of an animal need not refer to circumstances of exactly the same kind. All that the law requires to make the owner * * * liable, is knowledge of facts from which he can infer that the animal is likely to commit an act of the kind complained of."

This quotation should suffice as an answer to this argument, and as disclosing no reversible error in this respect.

Assignments of error 14, 15, 30, and 41 are argued in bulk as presenting a single question as to permitting a witness to state a conclusion. The fourteenth assignment was a question to the witness as to whether or not the road in which plaintiff was walking at the time was a "public road that the people travel all the time." In this there was no error. This was a matter merely incidental to the issue involved, and more or less of a descriptive character.

Numerous assignments of error relate to the ruling of the court in permitting plaintiff, on cross-examination of witnesses for defendant, to question the witnesses as to whether or not they had heard of the dog attacking different persons. Defendant had denied that the dog was of a vicious character and also, if so, that he had any notice thereof. Upon the question of such knowledge or notice, it was competent to show general notoriety in the community or as stated in some of the cases "common report" as to the vicious character of the dog, in order to impute a probable knowledge of such fact to defendant. McAleer v. People's Bank, 202 Ala. 256, 80 So. 94. The testimony of the witnesses for the defendant was in effect that the dog was not vicious or dangerous, and indirectly had no such general reputation in the community. Manifestly, therefore, there was no error in the court permitting plaintiff on cross-examination to ask these witnesses if they had not heard of the dog attacking these different persons mentioned in the questions. These various rulings present no reversible error.

We have carefully considered the assignments of error urged by counsel for appellant, and, finding no reversible error, the judgment will be affirmed.

Affirmed.

ANDERSON, C.J., and SAYRE and BOULDIN, JJ., concur.