Counts 4 and 5 of the complaint were as follows:
“Comes now the plaintiff, and, by leave of the court being first had and obtained, amends her complaint, by adding thereto the following counts, to wit:
“(4) The plaintiff claims of the defendants the sum of one thousand dollars as damages, and for cause of action states: That the defendants were the owners of or in control of a dog, which dog was rabid, or which defendants knew or had good reason to believe had been bitten by a rabid dog within the time in which said dog was liable to develop rabies, and defendants .knew or had good reason to believe that said dog would likely bite people if permitted to run at large, and that ,the defendants negligently permitted said dog to run at large, and, as a proximate consequence thereof, on, to wit, April 23, 1917, while the plaintiff was at or near her home in Etowah county, and while said dog was so running at large the said dog bit the plaintiff, making her sick, and causing her great mental and physical pain, and causing her to incur large doctor bills, and to go to Montgomery at great expense to take the Pasteur treatment, in seeking to be cured of her said injury, and causing her to b'e nervous and permanently injuring her.
“(5) The plaintiff claims of the defendant the sum of one thousand dollars as damages, and lor cause of action states: That the defendants were on the 23d day of April, 1917, the owners of or in control of a dog, which dog was rabid, or which the defendants knew had been bitten by a rabid dog within the time in which said dog would probably develop rabies, and that said dog was likely to bite persons, if permitted to run at large; that on said date the defendants negligently permitted said dog to run at large, and as a proximate consequence thereof, while the plaintiff was near her home, on said date, said dog so running at large bit the plaintiff, and made her sick, and caused her to suffer great mental and physical pain, causing her to go to Montgomery at great expense to take the Pasteur cure, in seeking to be relieved of her said injury, and plaintiff was by reason of .said bite made nervous and permanently injured. Hence this suit.”
[1-3] It will be observed that counts 4 and 5 of the complaint do not charge the defendants with being the owners .or keepers of a dangerous animal, as was the charge in the case of Strouse v. Leipf, 101 Ala. 433, 14 South. 667, 23 L. R. A. 622, 46 Am. St. Rep. 122, in which case the court properly held that the wife, living with the husband in the common home, was not liable. In the instant case the charge is of a special act of negligence, in that, being the owners or keepers, or having the control, they negligently permitted the animal to run at large — -a direct agency charge against both defendants, of which both or either might have been guilty. As was said by Brickell, C. J., in Teal et al. v. Chancellor, 117 Ala. 612, 619, 23 South. 651, 653:
“The plain purpose of the statute [section 4491, Code 1907], when there is participation by the husband, is to place them in the relation, and subject them to the liability, of joint tortfeasors.”
The negligence in permitting the dog to escape was essential to the maintenance of the action. The counts were sufficient to charge the duty to the plaintiff, the breach of that duty by the defendants, and damage to plaintiff as a proximate result, and were therefore not subject to the demurrers interposed. In Coal City Mining Co. v. Davis, 81 South. 358, 359,1 this court drew the distinction between actions of tort where two or more defendants were sued jointly. As a general rule, where two or more are jointly sued as defendants, according to the proof, a recovery may be had as to all, or as to any number less than all, and it is only where the action is in ease for a negligent performance, or for a negligent failure to perform a duty arising out of a contract, whereby injury and damage results, that the liability is restricted to the parties to the contract as alleged in the complaint.
[4] There was testimony tending to prove the allegations of the complaint as laid, and therefore the general charge as requested by the defendants was properly refused.
[5, 6] Refused charge No. 2, requested by the defendants, is covered by given charges F and E. Charge No. 3 asserts a proposition in conflict with the foregoing views, and was properly refused.
As we have already said, this ease is different from the cause of action stated in the Strouse v. Leipf Case, supra. The charge against the wife is that of a tort, for which she is suable separately or jointly with her husband, as the facts may warrant, and hence charges 4, 5, and 6, requested by the defendant, were properly refused.
The motion for a new trial was properly overruled. Code 1907, § 4491; Teal v. Chancellor, 117 Ala. 612, 23 South. 651.
We find no error in the record, and the judgment is affirmed.
Affirmed.
Ante, p. 22.