SHAW tl. CRAFT.
811
SHAW
v.
CRAFT
et ale December Term, 1888.)
(GircuitOourl. N. D. OMo,
w: D.
1.
ANTMALS-4NJURIES By-DoGS-PRESUMPTION.
Dogs kept upon a farm: are presumed not to be vicious. or to have dangeroushabits, .and the owner or harborer is not liable for their vicious acts, unles8 he had knowledge of such vicious or dangerous habits.
The owner or harborer of a dog. known to be in the habit of chasing persons or horses on the road adjoining his premises, is not liable for injuries to persons caused by their horses becoming frightened at the dog. where he has no knowledge that injury has ever resulted from the dog's babits; or of any acts of the dog likely to result in injury. and where he exercises ordinary care to prevent injuries by the dog. 8. SU!E. But after knowledge of such acts of the dog as would be likely to re$ult in injuries to passers the road. it is his duty to take such measures as will secure the public against danger therefrom in future. 4. NEGLIGENCE-IMFUTED-HuSBAND AND WIFE. The wife's administrator cannot recover for injuries causing her death, which were occasioned solely by the husband's negligence, but where his negliA'ence only contributes to the injury. and the negligence of defendant directly contributes to the injury, the husband's negligence cannot be so at· tributed to the wife as to defeat the action.]
2.
SAME-KNOWLEDGE OF VICIOUSNESS.
At Law. Action by ,James P. Shaw, administrator of Ella J. Shaw, deceased, founded on the Ohio statute authorizing the administrator of any person whose death wlis caused by the wrongful act of another, to recover damages for the benefit of the husband and children. The plaintiff alleged that on the 27th of October, 1887, as he was passing along a public road near the premises of the defendant Craft, with a buggy and one horse, in which were his wife and two daughters, two dogs of the defendants ran to the road and in it, and viciously barked at and chased his horse, thereby causing him to rrin away and upset the buggy, and throwing his wife out, and so injuring her thatshe shortly afterwards died of the injury. He also alleged that the dogs were vicious and dangerous, and in the habit of chasing and pursuing persons passing along the highway, and that the defendants knew of their vicious and dangerous haQits, but wrongfully allowed them to run at large. . Hamilton Ford, for plaintiff. A. Layton and E. D. Potter, for defendants.
a.
WELKER, J., charged the jury, among other matters: 1. That dogs upon a farm, being regarded as domestic animals, are presumed not to be vicious, or have bad and dangerous habits. and the owner or harborer is not liable for their vicious acts unless he had knowledge of such vicious
'The negligence of a man who invites a woman to ride in a buggy with him, be keeping full control of the horses, and the woman having no reason to doubt bis ability and care, cannot be imputed to her in an action by her against the mUnicijalit:y for injuries resulting from obstructions negligently left in the street. Town 0 Knlghtstowll v. Musgrove, (Ind.) 18 N. E. Rep. 452. See, also, cases cited in note.
FEtlER'AL .REPORTER.
character. Nor is he to be regarded an absolute insurer that they will not become vicious, and 'contraot habits,'of'pilrsuing or chasing passers ,. ..... i ' . '... " , . .., on 2. Tha:t th'eowdei"bt narborer -of a: dog; known to Min to be in the habit of barking at and chasing perso!?s or horses; on the roadadjoiping his-premises, but without knowledge injury had been done thereby, or such act of th;e dog in so doing as wouldbe likely to produce injury, is only required to exercise rensonableand'ordinary care to prevent injUrY being done by such dog to, along the road. This ordinary care .is such as's reasonably prudent person would or should exercise under like .F,ailing toexercise sqch ordinary care and diligence would which such owner or harborer would be liable, if injury is done by such dog. , . 3. BU,tif the ..ovvner or harborer ha!3knqwledge that his dog has been in the ,habit. ofviciously chasing or purstiing Passers-by in the public injury has resulted therefrom; or his road adjacent to his dog. had been, guilty of such with reference to persons or teams' passing.alongsuch highway; so that injurymight have thereby resulted, then, with such knowledge, it would be the duty of such owner or harborer to take suchnecesi3ary 'measures all wou.ld seCUre the public against danger from such future conduct and acts ofthe dog, and, failing to do so, would be liable for injuries committed or produced after such knowledge. 4.· ,'rhatMeans, who was the owner of on,eof the dogs, w.ould be liable w.ith Craft, ·the harborer thereof, if he had the same knowledge, and would be required to exercise the sallle care and diligence as the harborer;, and that Craft, as the mere harborer of dpg, with the before stated, for inju.ries CR'rlsed by him. 5. if the which the death of MrS. Sh",w, was occasioned. by the of tpe drivel' of the buggy,-her husband,--:-the defeI).dants C!1l1IlOt b.e held fOf the injury thus produced. If, her husband's negligence only contributed to the injury, then his, negligence cannot be attributed to the intestate, and mustnot be regarded as .her negligence, so as to dereat this action, where the neglfgence. of the defendants directly contributed to the injury. Verd1ctfor the plaintiff. Damages. $1.500.
DICKSON tl. LEHNEN.
819
".LEHNEN. (Olr-MJlt OfNrl, " B. D. ,
MM'OUri, ie. D. , ;
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IJ.urnLORD AND
'The subsequent leaSe having been decreed to' be void, to the tenant's ,knowl.edge. before he acquired any claim thereunder, it cannot be held to have been va.liIl When the ac,tion Of, un,lawful detainer was brong.lit,' beca,use an ,appeal the decree beellafter· . hadqeeri taken and a'Uper8edeIU , wards affirmed. .' . " ,. ." " ' 8. SAME-RES ADJUDIOATA. : , . , . isc.0mpetentand conclusive evidence 01
. 2.
Where a tenapt,: after the: expiration original term, claims the right to hold the, premises under a subsequent lealle by his landlord to a third person, the landlord, in an action of unlawful detainer against the tenant, may show that such subsequeBt lease Is void for fraud"such showillgnotbelng 80 inquiry the merits of the which Is prohibited by "
DBTAINJljR....FRAUDULENT L1U.SB.
4.
SAlig.,...ESTOPPEJr-REPRESicNTATIONS
The opinion of the landlord's attorney all to the effect of the appeal aP:d auper8edel,wbond, on the right of the subsequent lessee to sublet the premises, concerns a question of lawupqn facts of which the ,tenant had full knowl· edge. and. does not estop the landlord. .' , . The tenant haatheburden' of ploving representation. '01 the landlord's a'torney which are alleged to estop the lanl1lord. '
BY 'ATTORNEY.
3.SAHE....BuitDEN OF PROOF. '
8.
A lease to commence oil ihe e\tplration' Of a prior lease beinz of an exe'cutory character, and Rev. St. Mo. $:I 3080, permitting an attornment only with the .,landlord'sCollllent,or to one who has acquired ,his estate and ll11if,l!lt by deed or execution sale, Ute prior lessee has right to,f,lutTendeI: tlie posael\.sionto the sUbsliquent prie without the landlord's consent; eBpeeially a :". ,controversy as to thev81idity of the subsequent lease has ·arisen, and the les: see noUo ta).l:e PQssession. .
SAME-SURRENDER OF POSSESSION TO SUBSEQUENT LESSEJl1,
.'. , . ' '. .',. ' action of.unlawful detainer 2420 of the lteyised which inter alia any person shall willfully, and without fdrce, hold overllnY.1ands, tenements, termiqation of the tiltH" ,for whic};l they were or other under whom he c1aims,* * * demised orletto nim, suCh' bEl' guilty of an unlawful detainer." Plainancestor, Edwin H.;Farl)lS'forth; heretofore 800 atlJies of county, Mo., to Thomas H. Summers fOJ: 0term of eighfyears ending January 1, 1886. Defenda:t;1t became ,assignee Qf the lease, an,d elltered into possession of the demised, premises, .011 and remained in possession tothe end of the term. A,pril 7, lease for the premises tp one J... for t,he term of10 yearslto C9mmenceon January,l,l&86"whe the,first lease terminated. Farnsworth diEldf\pril n 27, 1879, 8tldJl:lereafter this plaintiff, who 'fas hisAevisee, brought ag,l).inst the court to cancel tiop.e41,ease, ,()n, ,the grQund .of. fraud., A decree annullIng the Was by J1ple,8, .. decree
This was'a:n
At Law. .
