FIDO AND THE LAW

Otago Witness, Issue 3806, 22 February 1927, Page 76

FIDO AND THE LAW

By A Lawyer, in John o’ London’s Weekly. Give a dog a bad name and — hang him! In the year 1747, when George II was on the throne, hanging was considered to be the appropriate method of disposing alike of dogs given to biting ana of men given to sheep stealing. “If a dog- has once bit a man and the owner thereof lets him go about or lie at his door an action will lie against him by a person who is bit, though it happened by such person treading on the dog's toes, for it was owing to the defendant not hanging the dog on the first notice, and the safety of the King’s subjects ought not to be endangered.” So said the great Lord Chief Justice Lee at the Guildhall when he tried in that year the case of “Smith v. Pelah,” where "the defendant’s dog had had a second bite. And that is good law still—with this variation, that if Towser’s toes be trodden upon by some careless ,person whilst he is lying peacefully at his master’s door, and he bites the trampier, his master will not necessarily be liable now, even though Towser has bitten somebody previously and his master knows of it, Moral —don’t tread on somebody else’s dog’s toes.

Some popular ideas die hard. One such notion is that a dog is'entitled to his ‘‘first bite.” Such is not-the law—though many people (including not a few lawyers) think it is. The liability of its master for any harm done by a dog depends on the doctrine of “scienter,” i.e., knowledge. Not, be it noted, knowledge on the dog’s part of how to bite, but knowledge on the owner’s part that the dog has at some previous time shown a disposition to bite. Once the owner-has been made aware of the fact that his dog has threatened to bite somebody, that is quite enough. If the dog does try a “taste of human leg after that, his owner will be liable.

If a man .keeps a dog to guard his house and a burglar gets in, the burglar will have no cause of action if the dog bites him, because he has not come upon the premises on lawful business. But suppose a policeman follows the burg-lar into the house, and the burglar ingeniously releases the dog and sets him upon the policeman, can the latter get damages from the householder? The answer is—no—'because the injury to the policeman would be due to the act of a third- person for whose conduct the dog’s owner was in no sense liable. So said Mr Justice Channell in a case which he tried in 1908. Supposing, however, there were no burglar in the case at all and the policeman were merely passing by or examining the premises to see that all was right when the dog bit him, the case would be otherwise. In the year 1858 a case was tried in the High Court in which the defendant’s tame bear had hugged and bitten the plaintiff. The bear was kept fastened up by a six-foot chain on the defendant’s premises. It was urged that as the bear was a tame one and had never shown signs of fierceness before, the owner could not be made to pay. But the Court decided otherwise:— A person keeping an animal of a fierce nature is bound so to keep it that it shall not commit injury. . . . That the defendant knew the bear to be of a fierce nature must be taken to be proved, since everyone knows that such animals as lions and bears are of a savage nature; and though such nature may s!ee- for a time, it may wake up at any time!

Therefore a man who keeps a wild animal, even though it is tamed, is taken to know that it is dangerous even though it has never shown any tendency to be savage. This, presumably, is the basis of the Home Secretary's warning to breeders of Alsatians who cross them with the wolf. If, says “Jix,”- in effect, a man keeps a half-bred wolf-dog or even a dog known to have-a wolf strain in him of a generation or two back, he can he held liable for any damag-e done by the animal without proof of knowledge of any vicious propensity in the dog. -Moral—don’t keep an Alsatian wolf-dog unless you know that there is no wolf blood in him !

But this legal distinction between “wild” and “domesticated” animals is apt to lead to curious results. For instance, if 1 keep a tame fox that gets loose and kills all my next-door neighbour’s poultry, I shall bq liable to pay for the damage done, because Reynard does not belong to the “domesticated” class, even though he has been tamed. On the other hand, if my old tabby, wandering abroad, kills all my neighbour’s chickens, I am not liable because the cat belongs to the* “domesticated”, class, and as wanderingabout is its natural propensity I am not held responsible for anything it may pet up to during its wanderings. That is what the Court of Appeal—the highest tribunal in the land next to the House of Lords—actually decided a few months ago.

Motorists should understand that a dog has a perfect right to be on the highway—just as if he were a human being—and so long as he is using the highway reasonably for passing and repassing he is entitled to.be treated with the same respect and consideration as any other “traffic.” But dog-owners, on their part must remember that there is a proper use of highways. A ’ dog accompanying his master must be kept under reasonable control. If he has not been properly taught to walk at his master's side, but is. allowed or perhaps even encouraged to rush “all over the place, then he is not using the highway in a reasonable manner. It is well that all concerned should keep these points in mind.