CASES

IN THE

SUPREME COURT

ОР

MINNESOTA.

FAKE V. ADDICKS.

[45 MINNESOTA, 37.]

ANIMALS-VICIOUS DOG-REPUTATION AS EVIDENCE OF NOTICE.Where one keeps upon his premises a dog which has attacked or bitten a considerable number of persons and is notoriously cross and vicious, it may be presumed that the owner has some knowledge of this fact, and in an action to recover for injuries inflicted by such dog, evidence of his gen. eral repute for viciousness is admissible, not to prove the particular fact of the dangerous propensity of the animal, but the public notoriety, and as tending to support the inference of knowledge of such propensity on the part of his owner. ANIMALS-VICIOUS DOG-NOTICE OF VICIOUSNESS. In an action to recover for an injury received from a vicious dog, the gravamen of the action is the neglect of the owner of the animal, known by him to be vicious and liable to attack and injure people, to restrain him so as to prevent the risk of damage, and the notice of such propensity must be such as to put a prudent man on his guard.

ANIMALS VICIOUS DOG - PROVOCATION BY STEPPING UPON HIM. —Where a person, with full knowledge of the evil propensities and viciousness of a dog, wantonly excites him or voluntarily and unnecessarily puts himself in his way, he cannot recover for an injury; but the fact that the party injured accidentally backed or stepped upon the dog without knowing of his presence is no defense for the owner of the dog.

Eaton and Cutting, for the appellant.

William E. Culkin and J. T. Alley, for the respondent.

VANDERBURGH, J. The plaintiff was bitten and injured by a dog alleged to be dangerous and accustomed to bite mankind, and kept and owned by defendant with knowledge of his vicious propensities. There was sufficient evidence to prove his vicious disposition, and that it was not safe to permit him to be at large. The testimony in plaintiff's behalf

was sufficient to show that the dog had attacked and bitten, or attempted to bite, several persons before the injury complained of. There was also evidence enough to support the verdict that the defendant had notice sufficient to warn him of his duty to kill or confine the animal. The plaintiff's brother testifies that in 1887, before the mischief complained of, he was bitten by the dog while passing through defendant's yard, and that defendant saw it. Defendant had owned and kept this dog between two and three years. One of his own witnesses states that he "was cross, ugly, and vicious"; and there is evidence tending to show that he had, on several occasions, attacked persons in defendant's yard, or going past his house, to the knowledge of members of the family. Upon the question of scienter, evidence was also admitted of the general repute in the neighborhood of the vicious nature of the dog. If one keeps upon his premises a dog which has attacked or bitten a considerable number of persons coming upon or passing by them, and is notoriously cross and vicious, it may safely be assumed that the owner has some knowledge of the fact. The evidence of general repute is in such cases received, not to prove the particular fact of the dangerous propensity of the animal, but the public notoriety, and as tending to support the inference of knowledge, on the part of the owner, of such propensity; and for such purpose it was received in this instance, in connection with other evidence on the subject. The court was sufficiently guarded in its instructions to the jury on this branch of the case, and we think there was no error in permitting it to go to the jury: Jones v. Perry, 2 Esp. 482; 1 Greenl. Ev., sec. 101; Meier v. Shrunk, 79 Iowa, 17; Murray v. Young, 12 Bush, 337; Keenan v. Hayden, 39 Wis. 558.

The gravamen of the action is the neglect of the owner of an animal, known by him to be vicious and liable to attack and injure people, to restrain him so as to prevent the risk of damage; and the notice of such propensity must be such as to put a prudent man on his guard.

At the time of the injury complained of, the plaintiff and defendant, who had his dog with him, were present on the premises of a neighbor who was engaged in thrashing his grain. In the afternoon the plaintiff got into a scuffle with a third party, and while this was going on, the dog suddenly attacked him, biting and lacerating his leg severely. Plaintiff's testimony shows that the dog came up from behind and

seized his leg without warning, and he denies that he provoked or stepped on him. One of defendant's witnesses testifies that he "heard the growl of the dog," and he looked around, and saw that he had "grabbed" the plaintiff. The conduct of the dog and the severity of the injury show his malignant disposition. But another witness for the defendant swears that, while the parties were scuffling, the plaintiff "backed on the dog. The dog was lying down. He got up and bit him." There is no evidence in the case that the plaintiff knew the dog was lying there, or that, if he did tread on him (which was a question for the jury), the act was other than accidental.

The defendant assigns as error the charge of the court on this subject, in which it is stated that it was immaterial in this case whether the plaintiff stepped on the dog or not. And so, under the evidence, we think it was. No case holds a contrary doctrine. It is true that in another part of the charge the court is less guarded, and states that the owner who "knowingly keeps a vicious dog is responsible for all the injuries he may do in that direction, whether he is provoked or not," but it is clear the court had in mind and referred to the facts as they appeared in this case. The charge was not, therefore, prejudicial, and besides, the defendant's exception does not cover that portion of the charge, but only that part first referred to. In Smith v. Pelah, 2 Strange, 1264, the chief justice ruled "that if a dog has once bit a man, and the owner, having notice thereof, keeps the dog, and lets him go about or lie at his door, an action will lie against him at the suit of the person who is bit, though it happened by such person's treading on the dog's toes; for it was owing to his not hanging the dog on the first notice, and the safety of the king's subjects ought not afterwards to be endangered": Wood on Nuisances, sec. 766; Muller v. McKesson, 73 N. Y. 195, 201; 29 Am. Rep. 123. The cases cited by the defendant are to the point that where a person voluntarily and unnecessarily provokes a vicious animal, and thus invites or induces the injury, knowing the probable consequences, he is not entitled to recover: Lynch v. McNally, 73 N. Y. 347. Here there is no evidence that the plaintiff knew the dog was in his way. The case is not within the rule last referred to. The evidence is conflicting on the question whether plaintiff stepped on the dog at all; but conceding it to be true, that portion of the charge excepted to was correct. Says Church, C. J., in Muller v. McKesson, 73 N. Y.

195, 201, 29 Am. Rep. 123: "If a person, with full knowledge of the evil propensities of an animal, wantonly excites him or voluntarily and unnecessarily puts himself in the way of such an animal, he would be adjudged to have brought the injury upon himself, and ought not to be entitled to recover. In such a case it cannot be said, in a legal sense, that the keeping of the animal, which is the gravamen of the offense, produced the injury; but as the owner is held to a rigorous rule of liability on account of the danger to human life and limb by harboring and keeping such animals, it follows that he ought not to be relieved from it by slight negligence or want of ordinary care. To enable an owner of such an animal to interpose this defense, acts should be proved with notice of the character of the animal, which would establish that the person injured voluntarily brought the calamity upon himself." Plaintiff's inadvertence in "backing upon backing upon" or "treading

upon" the dog was not such a case.

There are no other of the alleged errors which seem to require particular consideration.

Order affirmed.

VICIOUS ANIMALS-DOGS - NOTICE TO OWNER. -The owner of a vicious domestic animal, when chargeable with notice of its viciousness: Knowles v. Mulder, 74 Mich. 202; 16 Am. St. Rep. 627, and extended note. The owner of a vicious dog is answerable for any damage that he does: McGuire v. Ringrose, 41 La. Ann. 1029; Dockerty v. Hutson, 125 Ind. 102; Clanin v. Fagan, 124 Ind. 304; Newton v. Gordon, 72 Mich. 642. A party injured by a vicious horse may recover damages of the owner: Reynolds v. Hussey, 64 N. H. 64. The owner of a vicious bull, who allows it run at large, will be liable for any damage inflicted by it: Klenberg v. Russell, 125 Ind. 532; Meier v. Shrunk, 79 Iowa, 17.

MARSTON V. WILLIAMS.

[45 MINNESOTA, 116.]

MORTGAGE BY ABSOLUTE DEED AND DEFEASANCE-EFFECT OF RECORD OF DEED ALONE-JUDGMENT LIEN AS AGAINST PURCHASER FROM MORTGAGEE WITH NOTICE. - The record of a deed absolute in form, intended as a mortgage, will protect the rights of the grantee, although he has failed to record a defeasance, in the form of a contract to reconvey, which he has executed to the grantor; but a judgment properly docketed against the grantor is a lien upon his equity of redemption, as against a subse quent purchaser from the grantee with knowledge of the facts.

Lorin Cray, for the appellant.

Thomas Hughes, for the respondents.

COLLINS, J. On November 5, 1880, defendant Williams, then in actual possession of two hundred acres of land under a contract for its purchase, made with a railway corporation, and being unable to pay for the same, borrowed of defendant Thomas O. Jones the sum of fifteen hundred dollars for the purpose of making full payment and securing a deed of the land. On that day, using the fifteen hundred dollars and one hundred dollars of his own money, he paid for the land, and thereupon, by deed dated October 29, 1880, the railway corporation duly conveyed the same to Williams. On the first day named, Williams and his wife, for the purpose of securing the payment of the borrowed money, executed and delivered to defendant Thomas O. Jones a deed of warranty of 199 acres of the land so purchased from the corporation, one acre thereof having been previously sold to another party. These deeds were duly recorded on the eighth day of November, 1880. At the time of the execution and delivery of the deed last mentioned, Jones, the grantee therein, with his wife, made, executed, and delivered to Williams, one of the grantors, a land contract in the usual form, agreeing to sell and convey to Williams, his heirs and assigns, the land in question, upon being paid the sum of fifteen hundred dollars and interest at the time and in the manner therein prescribed. This contract was never recorded. Williams continued in actual occupancy of the premises, and with his family resided on the same until March 1, 1884. He claimed one eighty-acre tract as his homestead, and the court below found that it was his homestead up to the time that he removed, under the circumstances hereinafter stated. On March 1, 1884, defendant Williams, by a writing made upon the back of said land contract, duly witnessed and acknowledged, surrendered, assigned, and set over unto defendant Robert D. Jones all his right, title, and interest in the contract, under an agreement made between himself, said Robert D. Jones, and Thomas O. Jones, that the latter should sell and convey the land therein described to said Robert D. Jones for the sum of two thousand six hundred dollars, of which sum six hundred dollars should be paid to Williams, and the balance-which was the amount then due upon the land contract-should be paid to Thomas O. Jones. Thereupon the latter conveyed the premises to Robert D. Jones. As agreed upon, six hundred dollars of the amount to be paid for the land was paid to Williams, and on March 1, 1884, he removed from the same, surrendering possession to