R. F. Montgomery, Mrs. C. Gullifer, Subrogee, vs. G. H. Koester

On the Exception.

The opinion of the Court was delivered by

Eenner, J.

This is a personal action brought by Montgomery, in his own name and right,"against the defendant.

The latter had filed answer and the cause was at issue.

Thereafter a motion was filed, suggesting a transfer by Montgomery to. Mrs. G-ullifer, and an order was entered recognizing her as subrogee.

The-case was taken up for trial on 25th May, testimony taken on that and various subsequent days, to which the cause was continued, until 15th June, when defendant filed an exception to the effect that “Mrs. G-ullifer, subrogated, is a married woman and hath averred and proved no facts which warrant the Court in rendering judgment in her favor, and she is absolutely without capacity to stand in judgment. Wherefore, he prays that this exception be sustained, and plaintiff’s suit be dismissed with costs.”

’ Manifestly, this exception does not go to the dismissal of the suit, ■which was properly brought and at issue before the subrogation took place. The exception simply attacks the subrogation and the rights of the-subrogee thereunder. In absence of any interest proved, or even asserted in the defendant, the validity and effect of the subrogation seem to be matters between plaintiff and his subrogee, and not concerning the defendant. The suit proceeded in the name of the original plaintiff; the judgment, by its terms, is ‘‘in favor of plaintiff, Robt. E. Montgomery, Mrs Catherine G-ullifer, subrogated;” satis- faction of the judgment will securely discharge the defendant, and he has no other interest in the matter.

The authorities quoted as to suits improperly brought in the name of the wife do not apply to such a case.

On the Merits.

The action is brought under Art. 2321, R. C. C., for damage caused by dogs belonging to defendant, in attacking and biting the plaintiff.

The facts are, that plaintiff, -while walking in the public street at night, on arriving opposite an alleyway opening into defendant’s premises, was attacked by two dogs and injured as charged.

The evidence satisfies us, as it did the Judge a quo, that the dogs ■which did the injury were defendant’s.

■ These were watchdogs kept by defendant for the protection of his premises, and#heir dangerous character and knowledge thereof by defendant may be inferred from their size, their actual conduct, the admitted purpose for which they were kept, and the very care exercised in their custody; for it appears from the testimony offered by defendant, that his practice was to chain up the dogs every morning at daylight and to loose them only at night.

We think this sufficient to charge him with the scienter. 1 Thompson on Negligence, p. 203, § 17 and cases there cited.

Defendant’s right to keep the dogs is not questioned. They were necessary and proper for the protection of his premises in their sitúa- tión on the outskirts of the City. If, while loosed at night, they had bitten a person trespassing, or even negligently coming, upon his ‘ premises, defendant would not have been liable. But plaintiff was wending his way homeward on a public highway when attacked, and was not guilty of the slightest fault or contributory negligence,

■It-was defendant’s clear duty in loosing his dogs at night, for his own advantage and protection, to see to it that they should not escape and injure innocent passers on the street, and to that end, to exercise the highest care.

How the dogs got out is not shown, but the evidence is that the gate opening from defendant’s premises on the alleyway was not locked, but was fastened with a simple latch which might be opened by any one from the inside or outside. The risk of the gate’s being opened and left open by careless or mischievous persons and the consequent escape of the dogs was one theconsequences of which must be borne by defendant and not by the innocent plaintiff.

The rule at common law is ancient and Well settled that one keeping a dangerous or mischievous animal, with knowledge of its propensities, “ must, at his peril, keep him up safe from doing hurt, for though he use his diligence to keep him up, if he escape and do harm, the owner is liable to answer in damages.” 1 Hale’s Pleas of the Crown, 430; May vs. Burdett, L. R. 9 Q. B. 112; Cox vs. Burbridge, L. R. 13, C.B. 438; Flecher vs. Rylands, L. R. 1 Exch. 265, (S. C.); Rylands vs. Flecher, L. R. 3 H. L. 230.

Our law certainly does not afford a more lenient rule.

The French Courts and Commentators, in applying Art. 1385 of the Napoleon Code, corresponding to our own Article 2321, enforce the same doctrine.

Marcadé, in his usual trenchant style, says : “ Of two things, one : either the owner has not taken all the precautions which prudence required, and is thus in fault; or the animal is so vicious that all imaginable precautions to prevent it from injuring are of no avail, in which case the owner is in fault merely by keeping such an animal.” Marcadé on Art. 1385, No. 1; 8 Demolombe, Traitó des Contrata, No. 654 ; 5 Larorabióre, on Art. 1335, No. 3; 3 Aubry et Rau, § 418, p. 559; 2 Arcollas, Droit Civil, p. 981.

The exceptions to the rule of the owner’s liability are cases of vis major, contributory fault or negligence on the part of the person injured and the like explainedby Demolombe, within none of which, however, is this case embraced. 8 Demolombe, No. 650.

The French authorities go to the further extent of holding that the character of the animal and the knowledge of its vicious propensities by the owner, are of no consequence in determining the liability of the .owner.

We have no occasion in this case to determine whether we should follow them to’that extent.

As we have shown, both the highest English and French authorities agree on the doctrine on which we rest this case, and we feel safe in applying it.

Nothing remains but the quantum of damage allowed by the Judge a quo, viz: five hundred dollars. The evidence does not establish to our satisfaction that this allowance is so excessive as to justify us in disturbing it.

Judgment affirmed.