222 So. 2d 369 | Ala. Ct. App. | 1969
Irby D. REDDETT
v.
Jimmy R. MOSLEY.
Court of Appeals of Alabama.
*370 Pillans, Reams, Tappan, Wood & Roberts, Mobile, for appellant.
Moore, Moore, Downing & Layden, Mobile, for appellee.
CATES, Judge.
Negligence for dog bite: verdict for plaintiff, $683.00. Defendant appealed.
Animals are divided (in tort law): ferae naturae and mansuetae naturae. Dogs fall into the latter class.
Hence, the law puts the burden of proving the owner's scienter on the person attacked by the dog. Otherwise, the owner of a dog would be under absolute liability as might be the keeper of a tiger or a cobra.
This rule is one of judicial notice and requires proof of the defendant's knowledge (actual or imputed) of the domestic animal's dangerous propensity as a sine qua non in the elements of the claimed negligence. Mason v. Keeling (1699), 12 Mod. 332, also reported in 1 Ld.Raym. 606.
No proof was made in the defendant's knowing of the dog manifesting a tendency to bite mankind. Owen v. Hampson, 258 Ala. 228, 62 So.2d 245(6).
The case ought not to have gone to the jury without such proof. Hence, the judgment below is due to be reversed and the cause there remanded for trial de novo.
Reversed and remanded.