Steele v. Smith — 3 E.D. Smith 321

Majority

p. 321

Harriette Steele v. William Smith.

Headnote

The owner of a dog is not liable for the willful act of his servant in setting the dog upon the cattle of another.

The mere fact that the owner stood near will not warrant a judgment against him in such case, without proof that the servant acted by his command or direction.

And this is especially true where it appears that the owner, so soon as he saw the act, gave immediate orders to take off the dog.

Actiou against the owner of a dog for injuries to cattle belonging to the plaintiff, occurring under the circumstances mentioned in the opinion. The defendant suffered judgment in the Sixth District Court, and appealed.

p. 322

Arminius Aikin, for the defendant.

Robert H. Shannon, for the plaintiff.

There was, 1 think, no evidence warranting any judgment against the defendant in this cause.

The proof and admissions showed that the servant of the defendant set on the defendant’s dog, by which the plaintiff’s cattle were bitten.

The defendant was in no wise implicated, unless by the mere circumstance that at the time of the occurrence he stood upon his “ stoop,” near to the cattle ; and the witness is wholly unContradicted who says, that as soon as the defendant saw what his servant was doing, he ordered him to choke off the dog. It was the willful act of the servant, done without the authority or assent of the master, and for such acts the master is not liable.

No argument has been submitted with the return, and we can find no principle by which the judgment can be sustained. It was not the act of the dog alone, and if it had been, the defendant was not liable without evidence that the dog had done the like mischief before, and that the defendant knew it.

The judgment must be reversed with costs.

Judgment reversed.