(dissenting).
The testimony upon which the majority rely to sustain the judgment came in response to leading questions requiring a yes or no answer as to whether the defendant had warned them the dog might bite children, ignoring the completion of the warnings brought out on cross-examination when the witnesses were given an opportunity to state the younger dog was very jealous of the older one, and if a fight occurred when the children were near they might be injured.
The authorities relied on in the majority opinion do not support the holding in this ■case. I feel the majority opinion makes such a drastic change in the established law ■on animals, that such change can be best shown by setting out below an opinion submitted by me for the consideration of my brethren which the majority refused to approve. It reads as follows :
The plaintiff brought action for damages individually and as next friend of her minor daughter for personal injuries sustained by the daughter when attacked and bitten by a dog formerly owned by the defendant and still retained in his exclusive possession and immediate custody. From a judgment in favor of the plaintiff the defendant appeals.
In the forenoon of August 1, 1950, the plaintiff and her husband drove with their two minor daughters to a repair garage located on West I-Iobbs Street in the City of Roswell. The defendant maintained his home on the premises, but leased the repair garage thereon to other parties. Upon arrival. at the garage the father drove the car part way into the building and the mother and father and both children got out of the car and remained in the garage. The garage operators were absent, and while waiting for them to return the mother and father worked for a few minutes on or about the car. While they were so engaged the little girls were standing about or playing in'the garage, when the cocker spaniel dog kept' by the defendant came' to the open door of the garage and attacked the younger child, Sharon Louise, then about two years old. She was thrown to the floor and bitten on the right cheek when her older sister saw the disturbance and hurried to separate the dog from her. The older sister was holding the dog back from again attacking the child when the parents got around the car to them. There was a lacerated ragged tear on the right cheek of the child so attacked.
The trial court found the defendant had knowledge, or as a reasonable person should have had knowledge, that the dog had a tendency toward viciousness, especially toward small children, which tendency was brought about by jealousy; but that he made no effort to restrain the animal although he had warned members of his immediate family and an employee not to permit their children to play where the dog might be.
The primary contention of defendant is the court erred in finding the defendant knew, or as a reasonably prudent person should have known, the dog possessed vicious tendencies to attack human beings.
In "this jurisdiction the common law remains unchanged respecting liability of an owner or keeper of a dog to one injured by the dog, and such owner or keeper is liable only where it is established he had knowledge of the-vicious propensities of the dog.-’ 3 C.J.S., Animals, § 151a; 2 Am.Jur. (Animals) Sec. 48.
The fair import of all of the testimony about the dog in question is the defendant had two dogs that were jealous of each other and they often fought; he frequently warned others not to allow their children to play around the dogs because if the dogs began to fight children nearby might be injured; there was no evidence the dog in question had ever attacked or threatened to attack any person prior to the attack upon the child in this case.
A former employee of the defendant testified the defendant had told him to watch his little boy because the dog might bite him, and that when the employee wás working on the premises and' his son was there with him he would lock up the dog; but these statements should not be given an exaggerated meaning by divorcement from the substance of the employee’s testimony that the danger expressed was the dogs might fight and children near by might be bitten — ■ not that the dog would attack a child under other circumstances.
.. Nowhere in the record before us is there any evidence the defendant knew his employee thought the dog might bite or otherwise injure children except when fighting with the other dog, or that he knew.the employee would confine the dog when on the premises with his son. Nor is it contended the defendant is chargeable with imputed knowledge.
In Torres v. Rosenbaum, 1952, 56 N.M. 663, 248 P.2d 662, an action against an employer by an employee for injuries she received from a dog bite when she was sent on an errand to the home of a neighbor, we held the statement of a witness that the owner of the dog had told her the dog did not like Spanish people was not competent to show general reputation of the dog, nor to charge the employer with knowledge, actual or constructive, of the dog’s vicious propensities. While the facts of the Torres case are unlike those now before us, its underlying principle is applicable here — that scienter cannot be established by statements or actions of others not brought home in some manner to the one on whom liability is sought to be imposed.
Pin-pointed, then, the question presented' is whether knowledge on the part of a keeper of a dog that it is jealous of another dog kept by him and will fight such other dog and perhaps injure nearby children while so fighting, is notice the dog will, when alone, make an unprovoked assault upon a child.
We recognize the vicious or mischievous nature of a dog to inflict injury may be established by manifestations short of actual attack. 2 Am.Jur., Animals, Secs. 49 and 83; Emmons v. Stevane, 1909, 77 N.J.L. 570, 73 A. 544, 24 L.R.A., N.S.; 458; Twigg v. Ryland, 1884, 62 Md. 380, 50 Am.Rep. 226; Godeau v. Blood, 1880, 52 Vt 251. In the last cited case the classic statement of the doctrine is found, to wit:
“ * * * The duty which the law casts upon the keeper of a malicious and dangerous domestic animal, is but the enforcement of a common moral duty, binding upon all men; that a man should so keep and use his own property as not to wrong and injure others. The formula used in text books and in forms given for pleadings in such cases, 'accustomed to bite’, does not mean that the keeper of a ferocious dog is exempt from all duty of restraint until the dog has effectually mangled or killed at least one person. * * * ”
However, co-existent with this doctrine is another long-recognized rule that it must be shown the keeper of a domestic animal had notice (or should, as a reasonably prudent man, have had notice) it would inflict injuries substantially similar, though not identical, to that which forms the -basis of action against him. In 3 Restatement of Torts, Sec. 509, comment g, at p. 23, it is said:
“ * * * It is not enough, however, that the possessor of the animal has reason to know that it has a propensity to do harm in one pr more specific ways; it is necessary that he have reason to know of its propensity to do harm of the type which it inflicts.”
Perhaps the earliest recognition of this rule is in Jenkins v. Turner (Eng.1695) 1 Ld.Raym. 109. There the plaintiff brought action on the case alleging the defendant’s boar had killed a mare belonging to the plaintiff and that the boar had bitten other animals. The plaintiff said the declaration was not objectionable because cured by the verdict, -but the court said:
“ * * * But our case is not so, for if evidence had been given, that the boar had used to bite any animal, and that he afterwards bit the plaintiff’s mare, the jury would think, that this was a foundation good enough for them to find for the plaintiff. But the law is contrary, for unless the boar had used to bite horses, sheep, or such like valuable animals, it would be no offense in the proprietor to keep the boar, notwithstanding that he had bit frogs, &c.. * * * ”
In Osborne v. Chocqueel (Eng.1896) 2 Q.B. 109, the plaintiff was bitten by a bulldog belonging to defendant. There was no evidence the dog had bitten or attempted to bite any other person, but only that defendant knew it had chased and worried a' goat. Lord Russell of Killowen, C. J., there said:
“There was no evidence before the * * * judge that the dog had on any previous occasion manifested any tendency to bite mankind. It never had bitten or attempted to bite anybody; its record was quite clean except for ■the unhappy incident of the goat. Was •the judge entitled to arrive at the con-clusión that the defendant was liable? 'That leads to the question, Was there .sufficient evidence of scienter to make the defendant liable? I think there was not. *. * * the county court judge has not found that the dog, before it bit the plaintiff, had any ferocious disposition towards mankind; he has only found that it was ferocious, and ferocious to the knowledge of the ■defendant. As I have said, there was no evidence upon which it could be found that the dog had previously bitten or attempted to bite mankind. I am, therefore, of opinion that the judgment was wrong.”
In Tupper v. Clark, 1870, 43 Vt. 200, it was held the defendant was not liable' for injury caused to plaintiff’s horse by defendant’s mare when she went through a fence between the property .of plaintiff and defendant and kicked the plaintiff’s horse, although the defendant knew his mare would kick, other horses when she was in heat, it appearing the animal was not in heat at the time of the injury.
Notice that a dog is ferociously disposed toward cattle is not notice he will attack mankind. Twigg v. Ryland, supra; and/ conversely, notice that a dog will run after and bark at bicycles, or a person riding a bicycle, does not charge the owner with knowledge the dog will bite or attempt to bite horses on the highway. Swanson v. Miller, 1906, 130 Ill.App. 208. See also, 2 Cooley on Torts (4th ed. 1932) Sec. 266; Emmons v. Stevanc, supra; and Cockerham v. Nixon, 1850, 33 N.C. 269.
The following cases have held the owner’s knowledge his dog was accustomed to 'bite dogs or other animals is not notice he will attack humans: Fowler v. Helck, 1939, 278 Ky. 361, 128 S.W.2d 564; Hensley v. McBride, 1931, 112 Cal.App. 50, 296 P. 316; Norris v. Warner, 1894, 59 Ill.App. 300; and Keightlinger v. Egan, 1872, 65 Ill. 235.
In the instant case the only proof was that the dog was jealous of-the other dog kept by defendant arid they frequently fought each other. It is-virtually a-matter of common knowledge • that persons' near dogs that are fighting are subject fo the risk of injury to themselves. And'if the present injuries had been incurred under similar circumstances,"doubtles's the defendant would have been liable. For similar holding, see Hartman v. Aschaffenburg, La. App.1943, 12 So.2d 282, affirmed La.App., 13 So.2d 532. But we do not feel notice that a dog will fight with another dog and possibly inflict injuries on nearby children while so doing, is notice the dog will, when alone, make a vicious and unprovoked assault on a child. Exhaustive research has revealed no cases in which recovery was permitted where the facts comprising the notice of dangerous propensities and those of actual injury were so divergent.
We are in sympathy with the remarks of Lord Russell in Osborne v. Chocqueel, supra, that:
“ * * * I do not say that the law is in a satisfactory condition; I think it is unsatisfactory. It would, in my opinion, be more in accordance with sound reason and principle to make a man responsible for what his dog did— that he should take the risk of keeping it. We have not, however, to decide whether the law in this respect is satisfactory or unsatisfactory, but only to say what it is as applied to the particular case before us. * * * It is impossible, looking at the long series of cases, extending over many years, in which the doctrine of scienter has been applied and acted upon, to arrive at any other conclusion than that, in actions for injury sustained by man through the bite of a dog, the scienter which it is necessary to shew is that the dog had a ferocious disposition towards mankind — * * * ”
Until our Legislature has seen fit to impose liability on owners and keepers of dogs for injuries inflicted by them regardless of the doctrine of scienter, we are bound by the rules of the common law, and must rule in the instant case that the judgment against defendant cannot be sustained.
Those matters wherein my view of the case differs from that of the majority are contained in the foregoing paragraphs, and, in conclusion, I wish only to remark that regardless of the fact the plaintiff had to make out a part of her case by calling adverse witnesses, still, as I view the law, she was not thereby relieved from the duty of making out a case. I believe the majority arrive at their decision by actually relieving the plaintiff of the burden of proof.
For the reasons given, I dissent.
LUJAN, J., concurs.