Opinion
1 Div. 366.
April 15, 1969.
Appeal from the Circuit Court, Mobile County, W. D. Bolling, J.
Pillans, Reams, Tappan, Wood Roberts, Mobile, for appellant.
A dog is a free commoner. Pelham v. Spears, 222 Ala. 365, 132 So. 886. Actual knowledge of a dog's vicious propensities is required before liability for the dog's actions can be placed upon the owner of the dog. Durden v. Barnett Harris, 7 Ala. 169; Owen v. Hampson, 258 Ala. 228, 62 So.2d 245; Strouse v. Leipf, 101 Ala. 433, 14 So. 667, 23 L.R.A. 622; Ala. Fuel and Iron Co. v. Bush, 204 Ala. 658, 86 So. 541. Allegations not material can be made so by the pleadings. Ala. Fuel Iron Co. v. Denson, 208 Ala. 337, 94 So. 311; Dexter v. Ohlander, 89 Ala. 262, 7 So. 115; Austin v. Clark, 247 Ala. 560, 25 So.2d 415. The burden is on the plaintiff to prove his case. Western Ry. of Ala. v. Brown, 280 Ala. 543, 196 So.2d 392; Calvert Fire Ins. Co. v. Phillips Motor Co., 41 Ala. App. 610, 145 So.2d 848; Central of Ga. Ry. Co. v. Gross, 192 Ala. 354, 68 So. 291. Where there is no evidence of a material allegation the general charge should be given. Walling v. Fields, 209 Ala. 389, 96 So. 471; Shirley v. Shirley, 261 Ala. 100, 73 So.2d 77; So. Ry. Co. v. Lee, 167 Ala. 268, 52 So. 648.
Moore, Moore, Downing Layden, Mobile, for appellee.
Although a dog is considered a free commoner, the owner or keeper of such domestic animal which is vicious, and prone or accustomed to do violence, having knowledge of such violent disposition or habit, must safely and securely keep such animal, so that it cannot inflict injury. Ownership or custody of such vicious animal 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. Strouse v. Leipf, 101 Ala. 433, 14 So. 667, 23 L.R.A. 622; Hopper v. Crocker, 17 Ala. App. 372, 85 So. 843; Randle v. Payne, 39 Ala. App. 652, 107 So.2d 907. All that the law requires to make the owner or keeper of a dog liable is knowledge of facts which may be inferred from circumstances from which he can infer that the animal is likely to commit an act of the kind complained of. Owen v. Hampson, 258 Ala. 228, 62 So.2d 245; 2 Am.Jur.Animals, § 48; 3 C.J.S. Animals § 148. There need be, however, no notice of injury actually committed, and therefore it is unnecessary to prove that a dog had ever before bitten anyone else. In this respect, it is stated that the old doctrine that every dog is entitled to "one bite" is out of harmony with a modern humanitarian society. Mungo v. Bennett, 238 S.C. 79, 119 S.E.2d 522, 85 A.L.R.2d 1155; 4 Am.Jur.2d Animals, § 95; Kennet v. Sossnitz (New York) 260 App. Div. 759, 23 N.Y.S.2d 961; 286 N.Y. 623, 36 N.E.2d 459.
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.