Oakes v. Spaulding , 40 Vt. 347 ( 1867 )

The opinion of the court was delivered by

Barrett, J.

This action is brought to recover damages for“an injury to Mrs. Oakes done by a ram that was jointly owned by the defendants, both of whom had been, for a considerable time, “ aware that the ram had an unusual propensity to butt, and had, on several previous -occasions, attacked and butted persons.” The defendant, Oakes, made no defence. Spaulding only is defending-. Without bringing into consideration other elements of the case at this stage of the discussion, it seems proper, in the first place, to determine what duty and liability the law imposes on the owner of such a beast, who has knowledge of such propensity and habit in it. And, we think, the true view is well stated in the -opinions, taken together, of Barons Platt and Alderson, in the case of Jackson and Wife v. Smithson, 15 M. & W. Ex. R. 561. Platt, B., said, “ No doubt a man has a right to keep an animal which is ferae naiurae, and nobody has a right to interfere with him in doing so, until some mischief happens ; but as soon as the animal has done an injury to any person, then the act of keeping it becomes, as regards that person, an •act for which the owner is responsible.” Applying this principle in a case in which such a ram was the subject, Alderson, B., said, In truth there is no distinction between the case of an animal which breaks through the tameness of his nature, and is fierce, and known by the owners to be so, and one which is ferae naturae.” In the case of Brown v. Carpenter, 26 Vt. 638, a ferocious dog was the subject, Ch. J. Redfield, said, “his being in the presence of his keeper affords no safe assurance that his known propensities will not prevail over the restraints of authority.” That is the case often with men, and always liable to be with ferocious animals, as is said by one judge, “I think sufficient caution has not been used. One who keeps a savage dog is bound so to secure it as to effectually prevent it doing mischief.” These expressions convey what this court regard as the true idea of the law on this subject — treating the words “ keeper” and “ keeps,” as referring to the person who is chargeable with the duty of keeping the beast under safe restraint. The origin, development, and application of the law, in this respect, is well shown in the arguments of counsel, and notes, and the opinions of the judges, as the case is reported in Card v. Case, 57 E. C. L. 622. Popplewell v. Pierce, 10 Cush. 509, is to the same effect. These cases so fully bring to notice the learning of the subject, that further special references seem not to be required.

As resting on the relation of ownership solely, unmodified by peculiar circumstances, it would be the clear duty of the owner of such animal effectually to restrain it from practicing its favorite propensity upon persons who, otherwise, might accidentally, and without fault on their part, be exposed to its assaults. And no distinction can be made, as to this duty, between sole and joint owners. What is the duty of the sole, is equally the duty of the joint owners; and what is the duty of one joint owner, is equally the duty of the other, as to third persons, unless the peculiar circumstances • of the given case should relieve the one or the other from, that duty. This brings us to enquire whether, what is shown in this case thus relieves Spaulding from that duty. In this connection, let it be noted that we are not undertaking to decide questions in cases not yet in existence ; and so, are not deciding what, in supposed cases, might operate to relieve an owner, either sole or joint, from the duty of effectually restraining such an animal.

The ram had been kept by Spaulding up to the time of sheep-washing that spring. It is to be inferred that he assented to the washing of the sheep together. It does not appear that the defendant, Oakes, acted in contravention of any right of Spaulding, as between themselves, as joint owners, in putting the ram into his'own pasture, instead of taking it back to Spaulding’s pasture. Oakes, in virtue of the joint ownership, had the same right to have the ram in his own pasture, as Spaulding had to have it in his, and that right did not depend on expressed permission by the one to the other. In which ever pasture it was, the duty resting on the owners of its effectual restraint followed it. They sustained the relation of joint ownership voluntarily, and they thereby became charged with the correlative duty, and such duty rested on each personally. It was the incident result of the relation that, as between themselves, either might lawfully have the custody of the property, and such custody as to third persons, as touching the rights and duties springing from ownership, was the custody of both. It inured to the benefit of both with reference to rights of property ; it charged both with commensurate duties in reference to it as property. Now, it is noticeable that the case does not show that Oakes did any thing to prevent Spaulding from having full co-operation, either by advice, direction, or acts, in the mode of keeping the ram. All that it shows, either by statement or inference, is, that Spaulding did nothing about it after the sheep-washing — not so much as to enquire, or interest himself to know where, or in what manner, his fellow-owner was keeping the ram. Being an owner of it, and knowing its propensity and habit of doing-violence to persons, and being charged with the duty of effectually restraining^, and, without protestation or counter effort, permitting it to be in the pasture of his co-owner, and voluntarily remaining ignorant both, of the place and manner in which it was kept, and, under these circumstances, it committed the alleged act of violence and severe injury, he. failed utterly to fulfil the duty resting upon him, and stands as nakedly chargeable with liability for the damage done, as if he alone had owned both the ram and the pasture in which the injury was done.

To this view of the case the instructions of the county court to the jury were applicable, and, we think, they were clearly correct.

The judgment is affirmed.