
    Charles A. Valentine, respondent, v. Charlotte J. Cole, appellant.
    
      (Superior Court of Buffalo,
    
    
      General Term,
    
    
      Filed March, 1886.)
    
    1. Husband and wife—Married women—Wife liable for injury inflicted BY DOS KEPT ON HER PROPERTY.
    The defendant owned and occupied property on which she and her husband lived. Her husband owned and kept a dog which bit plaintiff, who sued defendant for damages. Held, that the wife as owner of the premises was liable for the damage occasioned by this injury; that since the several acts of the legislature enabling married women to take and convey real estate the wife’s separate estate is subject to her control without let or hindrance from her husband. Her husband cannot lawfully interfere with her possession and is not liable for the trespass of her cattle. She is liable for maintaining a nuisance to the injury of her neighbors. Her husband is not in possession solely or jointly with her. Smith, O. J., dissenting.
    
      2. Same.
    The husband may be the head of the family without being in any legal sense the possessor or actual occupant of the house or land in or upon which the family reside. Smith, C. J., dissenting.
    Appeal from judgment entered on verdict in favor of plaintiff.
    
      Day & Romer, for appellant, Charlotte J. Cole.
    
      George M. Browne, for respondent, Charles A. Valentine.
   Titus, J.

The defendant has been the owner, in fee, of a lot in this city, on which is a two-story brick house and large barn, since 1872. She is the wife of George M. Cole, and lives on the premises with her husband and family of children. He owns a large Newfoundland dog, which has been kept on the premises for two years. Mr. Cole paid the expenses of and supported his family. The plaintiff is a letter carrier, and while delivering mail in the ordinary course of his business, went upon the premises of the defendant and was bitten by the dog. The question before the court is whether the defendant, as owner of the premises, is hable for the damage occasioned by the injury to the plaintiff.

It is well-settled that since the several acts of the legislature enabling married women to take and convey real estate, the same as if single, her separate estate, owned by her, is subject to her control without let or hindrance from her husband. She can lease, mortgage or sell as perfectly and convey as absolute an estate as a single woman, and during her lifetime her husband cannot lawfully interfere with her possession or of the rents and income from it; he is not liable for the trespasses of her sheep, horses and cattle, and she is hable for maintaining a nuisance to the injury of her neighbors; he is not in possession, solely or jointly, with her; her possession is her own and not his, notwithstanding he is the head of the family. Rowe v. Smith, 45 N. Y., 230; Martin v. Rector, 3 East. Rep., chap. 555. Rowe v. Smith was an action of trespass against a married woman, for damage done by horses and cattle of defendant while straying upon the premises of the plaintiff.

She was the owner of real estate which she and her husband occupied together in the usual way of families, and the court held that she was properly sued without joining her husband, and was alone liable for trespasses committed by her cattle, saying “that her liability is founded upon a violation of duty imposed upon the owner of domestic animals to keep them from straying upon and injuring the premises of another.”

In Martin v. Rector, the doctrine of her liability was carried to a greater extent than is necessary to charge the defendant in this case. There the defendant, the husband of the owner of a leasehold estate, was sued in ejectment for non-payment of rent. The facts there reported are very similar to the facts in this case. The wife of the defendant obtained title to the premises from her father, and for many years she and her husband and family had lived on the premises as man and wife ordinarily do, he taking charge of the farm and doing the work. The court submitted the question of occupancy to the jury, and they found in favor of the defendant. Judge Danfortii, in writing the opinion of the court of appeals, uses this language: “ The husband was not the occupant within the meaning of the statute, nor was their possession joint,- the possession was her possession. * * * Before the act of 1849, the husband

juri mariti had a right to the possession of his wife’s lands, and as her head might be presumed to be in occupation. It is now different, the wife as well as the husband may own lands free from the others control, and there can be no such presumption, he may still be the head of the family without being in any legal sense the possessor or actual occupant of the house or land in or upon which the family reside.”

This language is clear and unmistakable the presumption of occupancy follows the ownership of the wife, and unless some circumstance exists to change that presumption it becomes conclusive; she, therefore, being the owner and legal occupant, is subject to the liabilities, burdens and duties incident to such ownership among which is liability for trespass, nuisance and harboring ferocious animals on her premises. Loomis v. Terry, 17 Wend., 496 ; Hinckley v. Emerson, 4 Cow., 351; Kelly v. Tilton, 3 Keyes, 263.

In. the case under consideration it does not fully appear whether the question of occupancy was submitted to the jury or not. As this is a bill of exceptions, and the jury found in favor of the plaintiff, it must be presumed that they passed upon this question favorable to the wife’s occupancy, as the verdict was against her on the whole issue. And as the defendant’s counsel expressly requested the court to direct a verdict, on the ground that the husband of the defendant resided on the premises, it is evident that the refusal of the court to direct a verdict for the defendant was a submission of that question to the jury, and their finding is conclusive. Rector v. Martin (supra).

The defendant being in possession has an absolute right to control and direct what kind of property she will keep on her premises, what animals; otherwise her possession would still be under the control of her husband, and the object of the statute in her behalf would be defeated, and she be no better off than under the common law. Rowe v. Smith, 45 N. Y., 230. In this case the dog had been kept on the . premises presumably with her knowledge and consent for two years. It was his home; she knew it, and permitted him to remain there; knew his ferocious propensities, and is clearly chargeable with harboring him, and consequently hable for the damages he does.

The husband undoubtedly, notwithstanding the acts of our legislature, is the lawful head of the family, and can take his family with him wherever he reasonably may go. He may educate and control his children, and exercise his common-law authority over the domestic affairs of his family as well as over his wife. He may still be hable for the torts of his wife (93 N, Y., 17), but the liability of the wife rests upon another principle, having no reference to the question of their domestic relations as such. She being by law invested with the same property rights as if she was sole, she becomes chargeable with the burdens and duties which that new condition imposes upon her, the same as other persons who own property. I can find no case where the courts have- held that any different rule or duty is applicable to a married woman than to other property owners ; and why should the public and third parties, in treating with a married woman with reference to her separate estate, occupy a different position more or less unfavorable because of her domestic relations? I fail to see any reason for such a rule, and do not believe it exists.

It follows, therefore, that the judgment appealed from should be affirmed, with costs.

Beckwith, J., concurs.

Smith, C. J., dissenting.

This action is to recover damages sustained by plaintiff from the bite of a dog, which he alleges the defendant harbored upon her premises. Ever since May 1,1872, the defendant has been the owner in fee of a lot of land on the corner of Albany and Herkimer street, in this city, upon which is a two-story brick dwelling house and a barn. The defendant is the wife of George M. Cole, and they and their family of eight children have resided on said premises for the last twelve years, the husband paying all expenses of supporting and maintaining the family. He was engaged in the lumber business, and kept a span of horses in the barn on said premises, and was the owner of a large Newfoundland dog, which, in October, 1884, and for nearly two years before that time, was kept on the premises. The plaintiff was a letter carrier, employed by" the United States, ■ and in October, 1884, in the course o£ his duty, went upon the premises to deliver a letter, and' while there was bitten by the dog.

The defendant’s counsel, upon the foregoing facts being proved, asked the court to direct the jury to find a verdict for her on the ground that the defendant’s husband was the owner of and harbored the dog, and not the defendant, and that, therefore, the husband alone was liable for the injury for which the action was brought. The court refused, and held that, on the foregoing facts, the defendant was hable to the plaintiff for the reason that she harbored the dog on her premises, and that the other elements of the action being proved, the case was submitted on the foregoing rulings to the jury, who found a verdict for the plaintiff.

Though the defendant was the owner of the house and premises where plaintiff suffered the injury complained of, and so far as questions affecting the title, ownership and possession of the property is concerned, may legally be termed the occupant thereof, yet the plaintiff’s right of action is not to be determined by, and does not depend upon, the ownership or occupancy of those premises. The only ground upon which the court held that the action could be maintained against the defendant, is that she harbored the dog on her premises. She was not the owner of the dog, but her husband was, and the only fair inference from the facts proved is, that he brought the dog upon the premises and kept him there. The defendant had no power to prevent his doing so, and she cannot therefore be said to have even consented to or acquiesced in her husband’s acts as owner of the dog. The husband was the head of the family, and as such, for all domestic purposes, had the control as master of the house and premises. He supported and maintained the family, and had the right to determine what domestic animals should be kept for their use, convenience or pleasure, upon the place where they resided. The dog is a domestic animal, and whether kept for the protection and service of the family or only as a household pet—the friend and playmate of the children—it is for the head and master of the family, the husband, and for him alone, to determine whether a dog shall be kept and maintained in the family or not. The same is true as to all other domestic animals. A cow, a horse, swine and fowls, and all other animals kept for domestic use or purposes, are to be kept upon the premises where the family reside, if the head of the family shall choose to do so. He alone is liable for the expenses attending their care and maintenance.

The wife could not be made hable for any such expenses, because she was the owner of the house where her husband lived and kept animals, owned by himself. He could bring such animals upon the premises for the use and service of himself and his family, and neither his wife, nor any other person, could prevent his doing so, or could remove them from the premises against his will. As the head of the family, the husband is responsible not only for the domestic order and good conduct of his household, but for all the details and incidents attending the management and control of his homestead. If he, his children or servants, or any of his household, keep upon the premises a domestic animal which does an injury to a third person for which an action will he, he, and he alone, is liable in such an action, and he is hable because he is the person responsible for the control and management of his homestead. The same rule exists as to servants and employees. The master of the family— the husband—determines how many, and what, servants shah be employed, and what duties they shah perform in his household. He, and he only, is hable for their wages or cbmpensation, and for any injury done to others by their fault or neghgence. I think no one would contend that the wife could be made hable for the wages of servants employed by her husband in his family, or for wrongs to others occasioned by the neghgences of such servants, because the title of the house and lot where the family lived was vested in her; yet the principle is the same in respect to servants, as in this case.

The theory upon which family government, with all its manifold blessings and its vast influences, rest, is that the husband has both the authority and the responsibility of the master and head of the family. And it is well said by an eminent writer (Archdeacon Raley) that such authority has more actual influence upon the well-being of society, than all civil authority put together.

The cases which the plaintiff’s counsel cites from the reports, are those in which questions were to be determined affecting the title and ownership of real estate vested in married women. Such was the case of Martin v. Rector (4 N. E. Rep., 183). It was an action of ejectment from premises, the title of which was in the defendant, who was a married woman, and lived with her husband upon the land.

The court held that the action was not properly brought against the husband, she being in contemplation of law the “actual occupant” of the premises within the meaning of the statute requiring the action of ejectment to be brought against the “actual occupant ” of the land. In the absence of. any evidence that the wife the owner of the premises, had transferred the possession thereof to her husband, the court held that possession was in her as such owner, the possession following the title. But this action was not brought to determine any question as to the ownership or title of the premises upon which the plaintiff was injured. It is an action for a personal injury inflicted upon the plaintiff by a domestic animal, and the question is who owned and controlled the animal, and is responsible for its vicious acts. And its decision depends not on the ownership of the premises where the injury occurred, but upon other facts and principles.

The changes made by our statute law in respect to the property, and the property rights and liabilities of married women, have not changed the common law as to the status of the wife in the family, nor deprived the husband of his rights, nor relieved him of his responsibilities, as the single head of the family, directing, controlling and governing its domestic life. And in cases like this the rule of the common law still prevails, which makes the husband and him alone hable for the injury.

The judgment appealed from must be reversed, and as, upon the conceded facts in the case, a new trial cannot benefit the plaintiff, his complaint should be dismissed and final judgment rendered for the defendant, with costs of the action and of the appeal.  