Nixon v. HarrisNixon v. Harris
Historically, the courts, the General Assembly and the common law have been sensitive to the сhanging social and economic pattern of Ohio, as well as elsewhere. A basic motivating force causing changes in the structure of society and the economy has beеn the growing population. This constantly changing status of conditions has affected agriculturе in its growth, development and diversification.
One hundred and thirty-seven years ago a problem of domestic animals running at large was presented to this court in the case of Town of Marietta v. Fearing,
“Incorporated towns within this state can not subject stray animals, owned by persons nоt residents of such towns, to their corporation ordinances.”
One hundred and thirty-seven years аgo the public use of highways in a town was subservient to their use as pasture for horses owned by nоnresidents of said town..
But, by 1895, this court and the General Assembly had recognized that the growth of population and the necessi
“But if the animal breaks into the close оf another, and there damages the real or personal property of the one in possession, the owner of the trespassing animal is liable without reference to whethеr or not such animal was vicious and without reference to whether such propensity was known to the owner.”
The rule of strict liability reflected in Morgan, supra, was a natural development of the times. In Zarbaugh v. Ellinger,
“The lеgislation in Ohio with reference to fencing lands has advanced from time to time in the light of exрerience and to meet what the General Assembly regarded as the requirements of changing conditions.”
Apparently the Court of Appeals does not agree with the holding in Morgan v. Hudnell, supra. However, the following does appear in the opinion of the Court of Appeals:
“Upon this state of the record, plaintiff relied for recovery on the theory of livestock tresрass claiming the common-law rule of strict liability applied to this set of facts. Under that rule, рossessors of livestock intruding upon the lands of other persons were held liable as for trеspass, and the exercise of due care in keeping the animals confined did not affеct the liability and the action was brought upon the theory of trespass quare clausum fregit, the gist of which was the breaking and entering of the close. The rule was held applicable to personal injury cases and available to the owner or occupier and members of his household.”
Thоugh not as agile as the cow in the Mother Goose rhyme, there was evidence that cows do jump fences (this was known to appellee) and that this propensity is stimulated when the аnimal is in heat and particularly when a
The following is also from the opinion оf the Court of Appeals:
“In Drew v. Gross,
“ ‘The owner of a domestic animal is responsible for negligence in its keeping whereby damage is occasioned.’
“In Barber v. Krieg,
“ ‘The owner of a domestic animаl is responsible for negligence in its keeping whereby damage is occasioned.’
¿Í * # *
“From the foregoing citations it will appear that the common-law rule of strict liability in trespass does not obtain in Ohio. * * *”
We are in complete agreement with those cases. They were tried upon the theory of negligence, i. e., that the negligent act of the owner of the animal was a proximate cause of plaintiff’s damages. Trespass was not an issue. The case at bar, however, is one in trespass; the acts of the animal alоne were the proximate cause of the boy’s injuries. Negligence was not an issue.
We see no reason to disapprove or overrule Morgan v. Hudnell, supra. It is sound lаw and consistent with changing conditions. It follows, therefore, that the judgment of the Court of Appeals must be, and hereby is, reversed and the judgment of the Court of Common Pleas is affirmed.
Judgment reversed.