In the case before us, though the declaration is not technically for trespass quare clausum, it is distinctly alleged that the defendant’s horse, “being so unlawfully at large, broke and entered the plaintiff’s close, and injured the plaintiff’s horse,” which was there peaceably and of right depasturing. This was sufficient; and the instruction given to the jury, “that if the defendant’s horse, at the time of the injury, had escaped into the close, and was wrongfully there, and while there occasioned the injury, then the plaintiff would be entitled to recover,” was correct. And this being so, the instruction requested “that the plaintiff must prove, in addition to other necessary facts, that the defendant’s horse was vicious, and that the defendant had knowledge of such viciousness prior to the time of the injury,” was properly refused.
Cutting, J., did not concur.
Exceptions overruled.[[277]]
DOYLE v. VANCE
Supreme Court, Victoria, April 16, 1880.
Reported in 6 Victorian Law Reports, Cases at Law, 87.
Stawell, C. J.[[278]] A dog belonging to the defendant got on land belonging to the plaintiff, how, does not appear, and barked at a horse of the plaintiff which was then grazing quietly in an inclosed field; the horse ran away, tried to leap over the fence, fell and broke its neck. The plaint was in the ordinary form, alleging a scienter in the defendant. At the trial, an application was made to add a count for trespass by the dog on the plaintiff’s land. The application was granted, and though the amendment was not formally written on the plaint, it may now be considered as having been made. A verdict was given for the plaintiff, with £10 damages.
The defendant has appealed, and the question we have to consider is whether, as a matter of law, he is liable for the trespass committed by his dog. It would have been competent for the judge at the trial to have found that the dog was on the land, by the leave and license of the plaintiff; all the circumstances point to the probability of that being the case. But he has found that the dog was there as a trespasser. There are a number of cases in which judges have expressed obiter dicta, as to the non-liability of an owner for injuries done by his dog, and curious and singular reasons—that a dog was the companion of man (and the like)—have been assigned for those dicta; reasons which courts have treated as entitled to high respect, and which have not been dissented from. There is, however, a comparatively recent case, Read v. Edwards, supra,[[279]] in which an action was brought against the owner of a dog for having chased and destroyed game, the declaration alleging scienter by the defendant. All the dicta of the learned judges to which I have referred were cited in the argument, were commented on and received attention. The case was decided on another point, but Mr. Justice Willes, who delivered the judgment of the Court, said:—
“The question was much argued whether the owner of the dog is answerable in trespass for every unauthorized entry of the animal into the land of another, as in the case of an ox, and reasons were offered, which we need not now estimate, for a distinction in this respect between oxen, and dogs or cats, on account, first, of the difficulty or impossibility of keeping the latter under restraint; secondly, the slightness of the damage which their wandering ordinarily causes; thirdly, the common usage of mankind to allow them a wider liberty; and lastly, their not being considered in law so absolutely the chattels of the owner as to be the subject of larceny. It is not, however, necessary in the principal case to answer that question.”
The legitimate inference from these observations is that the question, whether the dicta I have referred to are law, has not yet been decided, and that the subject is open for consideration. There may be very cogent reasons, socially, for exempting the owner from liability. But there is no reason which a court of law can recognize. Serious injury might be inflicted by a dog revelling in a highly-cultivated parterre, and can it with propriety be said that the owner of the garden can obtain no compensation? It has been decided that a dog can be distrained for damage feasant: Bunch v. Kennington, 1 Q. B. 679. There can be no question, if an ox were substituted for a dog, as having done the mischief complained of in the present case, the owner would be liable. Cox v. Burbidge, supra,[[280]] which was cited, does not apply. There, the defendant’s horse, being on the highway, kicked the plaintiff, a child who was playing there. The defendant was held not guilty of actionable negligence; but that was on the ground that the horse had a right to be on the highway, as well as the child, and was therefore not a trespasser.
In Lee v. Riley, supra,[[281]] through defect of fences which it was the defendant’s duty to repair, the defendant’s mare strayed in the night time from his close into an adjoining field, and so into a field of the plaintiff’s, in which was a horse. From some unexplained cause the animals quarrelled, and the result was that the plaintiff’s horse received a kick from the defendant’s mare, which broke its leg, and it was necessarily killed. It was held that the defendant was answerable for the mare’s trespass, and the damage was not too remote. The decision was based on the fact that the defendant’s mare trespassed on the plaintiff’s land, and that it was the duty of the owner of an animal to keep it from trespassing. In Ellis v. The Loftus Iron Co., supra,[[282]] the defendant’s horse having injured the plaintiff’s mare by biting and kicking her through the fence separating the plaintiff’s land from the defendants’, it was held that there was a trespass by the act of the defendants’ horse, for which the defendants were liable, apart from any question of negligence on their part.
The owner of an animal is therefore responsible for any damage fairly resulting from a trespass by that animal. The damage here has resulted from the trespass, and the verdict will therefore stand.