Harris v. . Fisher , 115 N.C. 318 ( 1894 )

The evidence objected to was properly admitted. It was corroborative of the evidence as to the bad character of the dogs, and also tended to confirm plaintiff's version of the manner of the accident. Defendant, however, further excepted to the addition by the court to the fifth prayer for instruction. By that addition the court, in effect, charged the jury that the defendants were liable, if the injury was caused by dogs belonging either to the defendants or their agent living on the place, if said dogs were ferocious and mischievious [mischievous] and so known to be by the defendants. The defendants placed much stress on the fact that one of the dogs — the collie — belonged not to defendants, but to (322) their agent's wife; and, the ownership of the collie being not within the scope of his agency, his knowledge of the character of the collie owned by his wife was not the knowledge of the defendants. But that point is not presented by the addition to the charge, which is: that if the dogs were ferocious and mischievous, and that fact was known to the defendants, whether the dogs were owned by them or their agent living on the place, the defendants would be liable. This must be so. If the defendants, knowing the dog was vicious and dangerous, permitted their agent to retain him in company with their other dogs at a place on the side of the road where he would be likely to commit damage to passersby, and he does so, the principal is liable. 1 A. E., 584. It would be otherwise if the agent owning the dog knew he was dangerous, but the owner of the premises did not, for the knowledge of the agent not in the scope of the agency is not the knowledge of the principal. The ownership of the dog in such case is not within the agency. Here, however, the instruction excepted to is: that if the owner of the premises, having knowledge of the vicious and dangerous character of a dog owned by his agent, permits said dog to run at large on his premises, said owner of the premises is liable. As to the third exception, the court charged in substance as prayed by defendants.

No error.

Cited: Halliburton v. Fair Assn., 119 N.C. 528; McGhee v. R. R.,147 N.C. 162.

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