
    Hayes v. Smith.
    
      Damages for personal injury by vicious dog — Question of negligent keeping of dog — Joint defendants in such action — Knowledge of dog’s character — Proof of bias on part of witness— Rule as to cross-examination of non-expert witness as to knowledge of facts — Charge by counsel of suppression of truth amounts to misconduct, when — May be cause for new trial — Form of objection to such abuse of privilege, not material.
    
    1. The gist of an action to recover damages for a personal injury inflicted by a vicious dog, is the keeping of the dog in a negligent manner, after knowledge of .his vicious propensities, rather than the keeping of the animal with such knowledge.
    
      2. Two or more persons may be joined as defendants in such action; and the recovery, if any, may be joint or several.
    3. When it has been shown that the animal has been kept after knowledge of his dangerous character has been acquired, or circumstances have been shown from which the law would imply knowledge, and an injury has followed, this would be prima facie evidence of negligence.
    4. One may negligently keep and harbor a vicious dog, knowing him to be such, without being the owner of the animal; and he may thus keep and harbor a vicious dog without owning or controlling the premises where he may be kept; and he may be chargeable with notice of the viciousness of the dog through his neglect to take notice of his vicious habits.
    5- A witness may be interrogated on cross-examination concerning facts which affect his credibility by showing bias or prejudice in favor of the party who called him as a witness; and if the witness denies the facts inquired about, the cross-examining party may prove them by other witnesses.
    6. Where a non-expert witness has detailed the facts within his knowledge, and, without objection, has been permitted to answer the question: “From your knowledge of the dog, what do you say as to'his being a peaceable, quiet dog?” he may be cross-examined as to the facts which form the basis of his opinion, and as to his want of knowledge of facts; but he can not be asked to give his opinion upon a state of facts which is not shown to be within his knowledge.
    7- For counsel, in the course of argument to the jury, to charge the opposite party with deliberate purpose and effort to suppress the truth, and with naving hired an attorney for that purpose, without justification in the evidence, or to state or assume as facts matters which are not in evidence, or to comment on testimony which had been ruled out, is an abuse of privilege, and is misconduct for which a new trial should be granted.
    8. It is a duty of the trial court which is not merely discretionary, when counsel grossly abuses bis privilege to the manifest prejudice of the opposite party, to interpose and admonish the offending counsel and to instruct the jury in regard thereto; and if it fail to do so, it is ground for a new trial.
    9. The form in which an objection to such an abuse of privilege is brought to the notice of the trial court is not material; and when the record shows that the opposing counsel addressed his objections and exceptions directly to the court, and the full record being before the reviewing court, it does not appear that the trial court took any notice thereof, nor that it acted thereon, it will be presumed to have refused to rule out the objectionable matter, and such failure and refusal will be ground for reversal.
    (Decided March 6, 1900.)
    Error to the Circuit Court of Sandusky county.
    The defendant in error brought suit in the court of common pleas of Sandusky county against the defendants who are the children and heirs of the late Rutherford B. Hayes, alleging in her amended petition, upon which the case was tried, that heretofore, to-wit, on the first day of January, A. D. 1893, and from thence and until, and at the time of the injury to the said plaintiff, as hereinafter mentioned, the said defendants wrongfully, injuriously and negligently, did keep and harbor a certain dog, and that they, and each of said defendants, during all that time had notice of and well knew that said dog was fierce, vicious and dangerous, and as they and each of them well knew, that said dog was in the habit of attacking, biting, chasing and frightening teams, horses and horses attached to wagons, carriages and other vehicles, and also in the habit of attacking and biting mankind, of all of which said defendants and each of them had at all times full knowledge; and that said dog did afterwards and while so kept and harbored by said defendants as aforesaid, to-wit, on the eighteenth day of August, 1893, and while plaintiff was riding in a buggy along and on the public highway, run out upon the public highway upon which plaintiff was then traveling as aforesaid, and fiercely and ferociously did spring at and viciously attack the horse drawing the buggy in which plainMff was then riding; and by reason of said attack so made by said dog upon said horse the said horse became and was frightened and unmanageable and overturned the buggy in which plaintiff was riding and threw plaintiff with great force and violence upon the ground, thereby inflicting upon plaintiff’s head and other parts of her body dangerous wounds and injuries, whereby she sustained a great loss of blood from her head and other parts of her body, a severe shock of the nervous system, partial loss of memory.
    And by means of the injuries so as aforesaid inflicted upon plaintiff, she has sustained permanent mental and physical injuries, total loss of hearing in one of her ears, and has at all times since she received said injuries endured constant pain and hodily suffering.
    Motion to make the amended petition more definite and certain was made and overruled, and likewise a special demurrer to the amended petition, on the ground that separate causes of action against the several defendants are improperly joined.
    Defendants answered separately. It is not deemed necessary to set out in detail the defenses included in these several defenses. A trial was had in the common pleas court, resulting in a verdict for the plaintiff. A special verdict was also returned by the jury which is substantially the facts as alleged in the amended petition. Motion was made to set aside both the special and general verdicts upon a large number of grounds, among which were the allegation that the court had erred in admitting evidence offered by the plaintiff and excepted to by the defendant and that there was misconduct of the attorneys for the plaintiff in the argument to the jury. Motion for a new trial was overruled, judgment rendered upon the verdict, and the judgment was affirmed in the circuit court.
    Petition in error is filed here to reverse the judgment of the circuit court.
    It appears in the bill of exceptions that a witness, Lucy Keeler, was examined on behalf of the defendants, and after stating in detail her knowledge of the habits of the dog in question, she testified as follows, without objection:
    Q. From your knowledge of him what do you say as to his being a quiet, peaceable, good natured dog? A. I am quite sure he was a quiet, peaceful, good natured dog from my knowledge.
    On cross-examination she was asked the following-questions :
    Q. Suppose that a man was driving along the public highway in a sleigh with his wife a.nd babe in the wife’s arms, and the dog would leap at the horse, at the head of the horse, spring at him with an attempt to grab the horse by the head or nose, miss the horse, pass on by, then come back at the lady that was sitting in the sleigh and jump at her, and suppose she was pulled over away from the dog and the dog would run around and jump at the man, and the dog was driven away with a whip, your opinions would be somewhat changed about the good nature of this dog, would it not?
    Objected to by defendant’s counsel.
    Overruled by the court, to which ruling of the court the defendant at the time excepted.
    A. If those are facts my opinion would certainly be changed.
    Q. Now suppose that dog had run upon the public highway from thirty to forty different times and leaped at horses hitched to wagons and carriages, leaped at their noses and barked and frightened them and ran after them and barked, now would that change your opinion of the good nature of this dog?
    Objected to by defendant’s counsel.
    Overruled by the court, to which ruling of the court the defendant’s counsel at the time excepted.
    A. I think that Avould change my opinion if it were proven to me.
    Also Dr. George O. Harlan was called for the defendant, Avho testified as folloAvs:
    Q. From your knoAvledge of this dog you may state Avhat his character was. generally, just describe him? A. Well, I could better, probably, if you put it his disposition, I don’t know as I can get at really the character of the dog.
    And on cross-examination as follows:
    Q. Supposing this dog in question in the winter time of 1892 and 1893, in February, 1893, had sprang out at a horse hitched to a cutter in which cutter there was a woman with a babe in her arms,, and husband sitting beside her, they were driving this horse along, this dog jumped out and made a leap at the horse’s nose or head, missed that and went on and then turned and came back at the woman and tried to catch her, jumped at her, and the husband pulling her over, kept her away from the dog, that he then ran around at the husband and made at him, and the husband struck him with a Avhip to keep him off, have you taken that fact into consideration in your testimony here when you say this dog was a peaceful dog?
    Objected to by defendant’s counsel.
    Q. If that is true, have you taken that into consideration?
    Objected to by defendant’s counsel.
    Q. Have you taken this into consideration?
    Objected to by defendant’s counsel.
    
      Overruled by the court, to which ruling of the court the defendant’s counsel at the time excepted.
    Q. Have you taken that in consideration what I have said? A. I never heard that before.
    Q. Did you take this in consideration when you said you thought the dog was a peaceable dog? A. I never have heard of that, never have known of that taking place, if I would have known that that had taken place —
    Q. If that actually did take place as I have stated, then what would you say?
    Objected to by defendant’s counsel.
    Overruled by court, to which ruling of the court defendant’s counsel at the time excepted.
    A. I would consider the dog then if he would do that in a vicious manner that he would be a vicious dog.
    Also William E. Lang testified in behalf of the defendant as follows:
    Q. Well, from your knowledge of the dog, your observations of him, yon may state what manner or character of dog he was as to being a quiet, peaceable, inoffensive dog?
    Objected to by plaintiff’s counsel.
    Court overruled the objection, to which ruling of the court plaintiff’s counsel at the time excepted.
    A. I should say he was an inoffensive dog.
    And on cross-examination:
    Q. Now what do you say about a dog that would run and jump over the fence and attack horses and spring at their heads and noses and cause them to run away, and run after them barking, what would you say about that kind of a dog, would that be a vicious dog in your opinion?
    Objected to by defendant’s counsel. .
    Court overruled the objection.
    By Court: The Court has held that you were entitled to ask the witnesses as to the character of this dog as to whether peaceable, quiet character or not. This witness, however, answered this was not a vicious dog, that was his answer directly, and it seems to me that the cross-examination should be as broad as the testimony of the witness in chief. I think that that is proper cross-examination of such an answer as he was permitted to give in direct examination. The question may stand, to which ruling of the court the defendant’s counsel at the time excepted.
    A. Well, I think likely I would.
    By Court: In connection with this testimony on cross-examination, it is not for the purpose of giving the jury his opinion of this dog on trial, but simply cross-examination on his standards of opinion, it is all the time a question for the jury to determine whether or not this dog was vicious or not.
    Q. What would you say about a dog in your opinion as to whether he was vicious or not who would run out upon the sidewalk and spring at a man and throw him down and catch hold of the man’s coat with his teeth and hold him down till he was kicked off, in your opinion would that dog be a vicious dog?
    Objected to by defendant’s counsel.
    Court overruled the objection, to which ruling of the court the defendant’s counsel at the time excepted.
    By Court: I will say that that is permitted by the court simply on the grounds that they have the right to ask the witness on cross-examination his standard of opinion.
    And also A. H. Jackson was called by defendants and testified as follows:
    Q. From your knowledge of the dog, what do you say as to his being a peaceable, quiet dog? A. I always judged he was, never saw anything to make me think otherwise.
    And on cross-examination as follows:
    Q. Would you say this dog was a quiet, peaceable dog if he would run out upon the highway and attack a man and force him to the ground and take hold of his shoulder and hold him there until he was kicked off?
    Objected to by defendant’s counsel.
    Court overruled the objection, to which ruling of the court the defendant’s counsel at the time excepted.
    A. No, if I had known of such a thing as that, or convinced that such a thing took place, I wouldn’t consider him a quiet dog.
    Q. Would you say this dog was a quiet, peaceable dog, if he would run out, jump over the fence and run out at horses and teams, and spring at their heads and frighten them, would you say then he was a quiet dog and follow after them?
    Objected to by defendant’s counsel.
    By Court: I think this cross-examination should relate to the knowledge of the witness, the holding of the court is, you may cross-examine him on his opinion and what his opinion would be if he had knowledge of such things, I think you should adhere to that rule as laid down. The witness gives his opinion as to the dog, the court holds you may ask if he knew this, that or the other thing, I do not think that question is in proper form.
    Plaintiff’s counsel withdrew the question.
    Q. If you knew that this dog was in the habit of jumping out over a fence and springing at horses and jumping for their noses, barking and growling and frightening horses and causing them to run away, would you say he was a quiet, peaceable dog? .
    Objected to by defendant’s counsel.
    Court overruled the objection, to which ruling of the court the defendant’s counsel at the time excepted.
    A. If I knew that to be the case, he did anything of that kind, I certainly wouldn’t call him a quiet, peaceable dog.
    By Court: That is admitted simply for the purpose of cross-examining this witness as to his opinion, not for the purpose of giving opinion of the dog in question, and should not be so considered by the jury.
    
      ¡3. C. Garver, one of the attorneys for the plaintiff, in argument to the jury made use of the following language, Avliich Avas objected to as noted:
    “Never before in my short experience of nearly eighteen years did I see that stubborn, unrelenting effort upon the part of mortal man to suppress truth and nothing but the truth, as Avas upon the part of the defendants in this case.”
    Col. Bartlett: If your honor idease, I take exception to this statement of counsel.
    Mr. Garver: Ool. Bartlett sat here for the very purpose, hired by the shekels of these defendants for the very purpose that he did, to keep out the God’s honest truth.
    Col. Bartlett: I take exceptions, if your honor please, to that last statement of counsel.
    Mr. Garver: They kneAV that if the truth was told in this case, though the heavens Avould fall, they could not escape a verdict at your hands. * * * That dog Avas alloAved to live only up to the time that they kneAV this case would have to be tried by a jury of tAvelve men. A few months before this case Avas called that dog Avas put to death. Only a few Aveeks before this case Avas called for trial that dog was put to death by the hand or by the direction of one of these defendants, Avho is interested to the tune of |25,000.
    Ool. Bartlett: I Avish to lodge an exception to the last remark concerning the dog being put to death.
    Mr. Garver: He does not CQme here of his own volition, but he comes here under the strong arm of the laAV, and he is brought here an unAvilling witness. * * * Well, the old man (Rinebolt) says that somebody called the dog. My God! If they had only left that out. He called the dog.
    Col. Bartlett: I object to that, if your honor please. That testimony is not in the case; it is ruled out.
    Mr. Garver: It is in the case. That somebody called the dog is in the case, but that he said he owned the dog is ruled out.
    Col. Bartlett: I lodge my objection and take my exceptions.
    Mr. Garver: There it is again. When you call the jury’s attention to the God’s own fact. “I object. I want it to be so recorded.” Oh! that hurts. They are bleeding under that lash as they never bled before. One of the important things and one of the most important things in this case is: Did these defendants have notice? Fanny Hayes, out upon the grounds within 260 feet of the public highway, Avith this dog barking with that voice of his, as has been described to you, what do you say? Called back — “Come back.” The cries of that old man brought to his assistance one of the inmates of that house, the man that was upon the ground, and when that dog heard that familiar sound of the old man Elliget he knew enough to obey and to return.
    Col. Bartlett: I object to the counsel assuming that there is any evidence Fanny Hayes was upon the ground at the time of the alleged attack by this dog upon Mr. Rinebolt, and except to the remarks assuming there is such evidence.
    Mr. Garver: Again we have got it. From the time the testimony in this case was offered until the time when the feeble arguments are to close, Ave are to be stopped; stopped for why? I will tell you AAdiy. He thinks he Avill lure us from the point and the thread of our theme. I say that that was the purpose and the intention of counsel. When witnesses were testifying he was talking, and he objected, and objected, and objected, hoping that you would miss a part of this; that you would not be able to hear it all, and so it was from the mouth of that distinguished lawyer when anything hurt or cut deep: “I object!”
    
      Bartlett & Wilson and B. A. Bayes, for plaintiffs in error.
    
      Witnesses are required, so far as may be, to state the primary facts which support their opinions. The jury should have been left free to form their opinion on the facts testified to, uninfluenced by the mere opinion of witnesses. Railroad Co. v. Schultz, 43 Ohio St., 282. The defendants below called a number of non-expert witnesses who testified in chief to the character of the dog found on their personal observation and knowledge of him, the particulars of which they stated in their testimony. This the' law allows. Gandolfo v. State, 11 Ohio St., 114.
    The court erred in permitting the witness Amelia Kern to testify regarding what she stated the witness Charles J. Patterson said to her. Patterson was simply a witness on the trial of the case on behalf of the defendants below. The subject matter of the question was collateral and irrelevant to the issue, and the plaintiff was bound by his answer. The witness Amelia Kern should not have been permitted to contradict him. Ohio v. Nevin, 23 Law Bull., 411; 1 Greenleaf on Evidence, Sec. 449; Whart. on Crim. Ev.. Sec. 484; 23 Ohio St., 27; 31 Ohio St., 100; 2 Clev., 281; 4 Bull., 676.
    S. C. Garver, one of the attorneys for the plaintiff below, while making the opening argument to the jury, was guilty of misconduct in stating aad commenting on matters prejudicial to the defendants below not given in proof on the trial of the case. Scripps v. Reilly, 35 Mich., 371; Insurance Co. v. Checver, 36 Ohio St., 201.
    Facts, of which, no proof is offered and no presumption arises, are legally outside of the case, and cannot be brought before the jury under any pretense whatever. Tucker v. Henniker, 41 N. H., 317; Rolfe v. Rumford, 66 Me., 564; Berry v. State, 10 Ga., 511; Dickerson v. Burke, 25 Ga., 225; Koelges v. Ins. Co., 57 N. Y., 638; Broughton v. McGrew, 39 Fed. Rep., 672, 5 L. R. A., 406; Bennett v. State, 12 L. R. A., 449; Mitchum v. State, 11 Ga., 615; Roeder v. Studt, 12 Mo. App., 566; Proctor v. De Camp, 83 Ind., 559; Gibson v. Zeibig, 24 Mo. App., 65; Martin v. Omdorff, 22 Iowa, 504.
    Counsel should not appeal to the prejudices of the jurors against the opposite party, and such conduct unrebuked by the court, will warrant a new trial. Miller v. Dunlap, 22 Mo. App., 97; State v. Lee, 66 Mo., 165; State v. Barham, 82 Mo., 67; Brown v. Railway Co., 66 Mo., 588; Bremmer v. Railway Co., 61 Wis., 114; Brown v. Swineford, 44 Wis., 282.
    Instructions of the court to the jury to disregard improper remarks of counsel do not cure the error. Rochester v. Shaw, 100 Ind., 268; State v. Roland, 85 N. C., 576.
    When an attorney of the plaintiff is permitted to make statements of matters to the jury not in evidence, and comment upon them in his argument to the prejudice of the defendant, a new trial should be granted, though the jury were instructed to disregard the statements and comments of counsel as to matters not in evidence. 92 Cal., 282; 27 Am. St. Rep., 103; 86 Ga., 401; 22 Am. St. Rep., 465; 66 Mich., 460; 11 Am. St. Rep., 512; McDonald v. People, 9 Am. St. Rep., 559; 16 Am. & Eng. Ency. of Law, 524; The Warder Co. v. Jacobs, 58 Ohio St., 77.
    When a dog is kept on certain premises, a person is not liable for the vicious acts of such dog as the keeper or harborer thereof, unless he has control of the premises where such dog is kept. Lynch v. Moore, 38 New York Sup., 1095; Strouse v. Leipp, 101 Ala., 433: Morgan v. Hudnell, 52 Ohio St., 552.
    . Where two parties have control of premises on which a vicious animal is kept, and one of the parties lias control of the animal and it is his duty to have such control, and the other party has not control of the animal and it is not his duty to have such control, the former is, and the latter is not, the harborer of the animal. Shearman and Redfield on Negligence, 5th ed., vol. 2, sec. 635, page 1110; Whittemore v. Thomas, 153 Mass., 317.
    Harboring being an element necessary to tlie liability of each of the defendants, and facts being conceded which conclusively piwed that the executors did, and that Fanny Hayes and Scott R. Hayes, could not, for want of control, harbor the dog, this court should reverse the judgment against the latter two and render judgment in their favor. Minnear v. Holloway, 56 Ohio St., 118; Higgins v. Higgins, 57 Ohio St., 239.
    A judgment at law is a unit as to all of the defendants against whom it has been rendered, and if erroneous as to one is erroneous as to all. Street Railway Co. v. Morrison Co., 160 Ill., 288; 43 Northeastern, 393; Jansen v. Varnum, 89 Ill., 100; Ragor v. Kendall, 70 Ill., 95; Tillett v. Railway Co., 115 N. Car., 662; 20 Southeastern, 480; Sheldon v. Quinlen, 5 Hill (N. Y.), 441; Lewis v. Kahn, 15 Daly, 326; 5 N. Y. Sup., 661; Frazier v. Williams, 24 Ohio St., 625; Buckingham v. Bank, 21 Ohio St., 131.
    Two or more persons cannot jointly commit a tort, a material element of which is knowledge of any particular fact or state of things, except- in those cases where the knowledge of one is imputed to the others.
    The gist of the action in the case at bar is “the keeping the animal after knowledge of its mischievous disposition.” Partlow v. Haggarty, 35 Ind., 178; 1 Addison on Torts, Sec. 261; Spring Company v. Edgar, 99 U. S., 645; Mullen v. MeKisson, 73 N. Y., 195; Cooley on Torts, (2nd edition, page 404).
    It is well settled in this state that several persons cannot rightly be made defendants jointly, when the tort cannot be joint. Orr v. Bank, 1 Ohio, 36; Foote v. Cincinnati, 9 Ohio, 31; Anderson v. Pack, 14 Bull., 596.
    That slander is not capable of commission by two jointly is also held by the text writers. Cooley on Torts, *124, 2nd edition, 142; Pomeroy on Remedies, section 313, page 361.
    The mere fact that each of two persons has knowledge of a fact which makes them liable for a tort, is not sufficient to authorize a joint action against both. It must appear in the petition that there is a “jointness” (if we may coin a word) or a “oneness” in the knowledge. Sellick v. Hall, 47 Conn., 260; Bard v. Yohn, 26 Penn. St., 482; Williams v. Sheldon, 10 Wendell, 654; Bliss on Code Pleading, 2nd edition, page 131, section 83.
    How can two persons jointly know the vicious disposition of a dog? How can they join in knowledge any more than speech? If two should harbor, one with knowledge and one without, manifestly the latter is not liable. Morgan v. Hudnall, 52 Ohio St., 552.
    Again, Jack v. Hudnall is probably not good law; it is contrary to the doctrine enunciated in Cooley on Torts, *348, 2nd edition 410, note 2; 2 Kinkead’s Code Pleading, 169, note 2; Auchmuty v. Ham, 1 Denio, 495; Von Steenburg v. Tobias, 17 Wendell, 562; Partenheimer y. Van Order, 20 Barbour, 479; Cogswell v. Murphy, 46 Iowa, 44; Nierenberg v. Wood, 59 N. J. L., 112.
    The case of Jack v. Hudnall, 25 Ohio St., 225, is distinguished rather than approved in Boyd v. Watt, 27 Ohio St., 259; Shearman and Negligence (5th edition), section 626.
    Where a plaintiff has the option of suing several persons’ in separate suits or all jointly in one suit, and pursues the latter course, either one of the defendants may, by special demurrer or answer, insist upon a separate suit against himself alone.
    There is nothing in the amended petition to show that any two of the defendants joined in the harboring or joined in the knowledge. Strouse v. Leipf, 101 Ala., 433; 14 Southern, 667; Quilty v. Battie, 
      135 N. Y., 201; 32 Northeastern, 47; Pomeroys Remedies, section 453.
    That this action is “against several defendants,” to-wit, five of them, is self-evident and needs no argument. ,
    The Revised Statutes treat of “Joinder of Actions” in Chapter 4, being sections 5019 to 5021 both inclusive.
    There are no authorities construing subdivision 7 of Section 5062: the Code, section 87, contained but six subdivisions, 51 Ohio Laws, 72; 3 Curwen, 1952; 2 SAvan & Critchfield, 974, 975; Seney’s Code, 2nd edition, page 140, section 87. The Revised Statutes, section 5062, contains eight subdivisions, the fourth and seventh being added in the revision. This seventh subdivision noAV under consideration, therefore first appeared in 75 Ohio Laws, 619, having been passed May 14,1878, to take effect September 1, 1878.
    There can therefore be no authorities previous to 1878 on this seventh subdivision; nothing previous to 33 Ohio State or 6 American Law. Record and nothing in Handy, Disney or the Cincinnati Superior Court Reporter.
    We have been unable to find in the Codes of any other state than Ohio, any enactment corresponding to this subdivision 7 of section 5062. It is not found in the statutes of the folloAving states in the editions accessible to and examined by us. Deering’s Annotated Codes and Statutes of California (1886), see section 430. Revised Statutes of Idaho Territory (1887), See section 4174. Indiana Statutes. Revision of 1894. Burns. Section 342. Kentucky. Act regulating Practice in Civil Cases, 1876. Section 92. Missouri Revised Statutes, 1879. Section 2043. General Statutes of Nevada. 1885. Section 3$62. Bliss’s New York Annotated Code. 1883. Section 488. Compiled Laws of Utah, 1876. Section 1265.
    The legislature must have intended to add to the grounds of demurrer when it added subdivision seven to section 5062; a clause added in the revision of the statutes has as much force as an amendment by the legislature. Collins v. Millen, 57 Ohio St,, 289.
    The harborer of a domestic animal is not in general liable for an injury committed by such animal while in a place where it rightfully may be, unless it is shown that the animal was vicious in the particular complained of, and that the harborer had notice of such vicious propensity.
    Plaintiffs in error claim that there is in the record no testimony whatever that either of the five defendants had any notice of this vicious propensity of the dog.
    Notice to one joint-harborer of a vicious animal is not, by mere force of the relation, notice to other joint-harborers. Freeman on Co-Tenancy and Partition, section 171; 16 Encyclopedia of Law (first edition), 806; Wade on Notice, page 312, section 684; Snyder v. Sponable, 1 Hill, 567; which was affirmed in Sponable v. Snyder, 7 Hill, 427; Perkins v. Zumstein, 4 Circuit Court, 371, in 2 O. C. D.; Bettor v. Holland, 57 Ohio St., 492; Baker v. Kellogg, 29 Ohio St., 663.
    
      B. B. Love; Finnefrock & Garver, and Basil Meek, for defendant in error.
    An objection presented is that “the court, over the objection of the attorney for the defendants below, permitted non-expert witnesses, on cross-examination, to give their opinions as to the vicious character of the dog, * * * and give a state of facts not within the personal knowledge of the witness.”
    The defendants below were not content to allow the witnesses to merely detail to the jury the conduct of the dog, and allow the jury to draw its own conclusions as to the character of the dog, but they put the question to the several witnesses direct as to the character of the dog. And the witnesses answered as above, not that the particular conduct which they observed was “quiet,” “peaceable” and “good-natured,” and “not vicious,” but that he was a dog of that character; and the facts sought to be ascertained by the cross-examination was what the witnesses meant by the terms “quiet and peaceable,” “goodnatured,” and “not vicious.”
    The jury could not have been misled by this testimony, especially with these specific instructions given by the court at the time as' to the only purpose for which it was admitted, and for which it could only be considered by the jury. In fact, it was the province of the jury to pass upon the character of the dog after the witnesses in question had detailed all the facts to the jury for which the witnesses were called upon to give their respective opinions as to the character of the dog; and having done so, any cross-examination tending to test the witness’ opinion was competent. 40 Ohio St., 376; 1 Greenleaf on Evidence, sec. 468; Clipper v. Morgan, 18 Ohio, 375; Taylor v. Boggs, 20 Ohio St., 516.
    The purpose of this cross-examination was not to establish the character of the dog, or for giving an opinion of the dog in question, but solely for testing the witness as to his opinion expressed- in chief. 8 O. C. D., 96 ; 15 Circuit Rep., 307; Martin v. Elder, 32 Ohio St., 282.
    And it is error to exclude on cross-examination questions which calí upon the witness to reaffirm, qualify or deny his statements in chief. Phillips v. Elwell, 14 Ohio St., 240; Shelby v. Clagett, 46 Ohio St., 549; 42 Ohio St., 429; Ohio Code of Evidence, sec. 218.
    The plaintiff may cross-examine defendant’s witness as to all- matters which the defense may prove under the issues in order to sustain his defense. Legg v. Drake, 1 Ohio St., 286; Bean v. Green, 33 Ohio St., 444.
    
      The third objection presented is that the court erred in permitting the witness Amelia Kern to testify regarding what she said the witness Charles J. Patterson said to her. This impeaching testimony was offered solely for the purpose of showing the interest, bias and prejudice of defendants’ witness, Charles Patterson, and was competent. Kent v. State, 42 Ohio St., 426; Jones, Law of Evidence, Vol. 3, secs. 829, 830, 831.
    Counsel for defendant objects, and in some instances objects and excepts, to the remarks of the plaintiff’s attorney; but to what did he object or except? Not to any ruling of the court, for the court had made no ruling, nor had the court been asked to make a ruling. We are not even told whether counsel expected the court to make a ruling.
    We especially direct the court’s attention to the fact that the record does not show that counsel for defendants below directed the statements of his exceptions to the court, nor that the court’s attention was ealled to them; and we insist that if there was any error in statements of Mr. Carver, that he did not save his exceptions by objecting thereto and asking the court to rule upon them. The presumption is that the court did its full duty, and if Col. Bartlett had asked the court for a ruling upon any objection, or for instructions to the jury upon any statement of Mr. Carver, the court would have complied with his request. Warder et al. v. Jacobs, 58 Ohio St., 81; 19 Ohio. 300; 10 Ohio St., 223; 20 Ohio, 48; 22 Ohio St., 324.
    Plaintiffs in error admit in their pleadings that Birchard A., Webb C. and Rutherford P. Hayes harbored said dog “as executors,” and each severally denies that he kept and harbored said dog.
    The admission that they kept and harbored the dog stands with all that it implies, and with all the legal responsibilities it involves, and the statement that they did this as executors is nugatory and may be disregarded. 8 O. C. D., 103, and 15 C. C. R., 318.
    An executor is liable for what he omits to do, if it is his duty to do it, as for misfeasance. 2 Addison on Torts (D. & B. Ed.), 130.
    Executors and administrators are personally liable for the injuries to third persons caused by their oavu tortious or negligent acts in the administration of an estate. 7 Eng. & Am. Enc. of LaAV, 344, and cases cited. They are personally liable for services of attorneys employed by them even if the services were rendered for the benefit of the estate. 2 O. L. N., 333; Thomas, Admx., v. Moore et al., 52 Ohio St., 200.
    An administrator cannot bind an estate by his contract, 5 C. C., 12; Id., 89. How, then, can he bind an estate by his own negligent, or tortious act even while acting in that capacity?
    The evidence clearly and unmistakably establishes the vicious nature of this watch dog, and the jury has found that he “was fierce, vicious and dangerous.”
    This vicious nature we claim is equivalent to express notice. Muller v. McKesson, 73 N. Y., 195; Lynch v. McNally, Id., 347; Earl v. Van Alstine, 8 Barbour, 630.
    The habit of an animal is in its nature a fact to be shown by proof of successive acts of a similar kind. Ray on Negligence of Imposed Duties, p. 605.
    The disposition of an animal is shown by its general behavior antecedent to the injury.
    The ferocity and viciousness of this dog were continually demonstrated for about two years prior to this injury, at Spiegel Grove, the home of these defendants.
    The question of scienter is always left to the jury. Nordic v. Leffler, 2 Bull., 258; Clark v. Hite, Tappan, 1; Worth v. Gilling, 2 Com. P. (L. R.) 1; Thompson on Negligence, sec. 17, p. 203; Ray on Negligence of Imposed Duties, p. 607; Campbell v. Brown, 19 Penn., 359; Schmidt v. Humphrey, 48 Iowa, 652.
    
      The defendants below either had actual knowledge of the viciousness of this watch dog, or their conduct was such respecting it as to charge them with negligence in not observing it.
    From all this we can say that the jury was warranted in finding that the defendants are chargeable with notice of such vicious habits of this dog as must have come to their knowledge if they had exercised such reasonable care and watchfulness as prudent men ought to exercise over an animal of that kind. 15 C. C. Rep., 327; Cooley on Torts, 2d Ed., p. 405; Shearman and Redfield on Negligence, sec. 189, p. 221 (or 5th Ed., sec. 630) ; Wharton on Negligence, secs. 923 and 904; Ray on Negligence, p. 610; Stebin v. Walker, 46 Mich., 5.
    These authorities and decisions of our court lead to but one conclusion, viz.: When the owner or harborer is wanting in the exercise of reasonable care to discover viciousness in the animal, he is liable.
    The owner of a domestic animal may be chargeable with notice of its viciousness through his negligence to take notice of its vicious habits. Knowles v. Mulder, 74 Mich., 202; Turner v. Creighead, 83 Hunn., 112; 63 N. Y. S. R., 853; 31 N. Y. Sup., 369; Brice v. Bauer, 108 N. Y., 428; 2 Am. State Rep., 454; Buckley v. Leonard, 4 Denio, 500; Loomis v. Terry, 17 Wendell, 500; Mann v. Weiand, 81½ Penn. St. Rep., 243; Robinson v. Marino, 3 Wash., 434; Arnold v. Norton, 25 Conn., 92; Worth v. Gilling, L. R., 2 C. P., 1; Thomas on Negligence, Rules and Decisions, 508; Montgomery v. Koester, 35 La. An., 1019; Warner v. Chamberlain, 7 Houst., 18 (Del.), 30 Atl. Rep., 638.
    Knowledge of the agent or servant is knowledge in law to the owner, keeper and harborer.
    Generally, in order to charge the owner, it is sufficient to show that his servants or agents had notice of the vicious disposition of the animal. Buswell, 188; Brice v. Bauer, 108 N. Y., 428; 2 Am. S. Rep., 454; Ray on Negligence of Imposed Duties, 625; Applebee v. Percy, L. R., 9 Com. P., 647; 43 L. J. C., 365; 22 Week. Rep., 704; Cooley on Torts, 2d Ed., 406, note and cases cited; 2 Eng. & Am. Enc. Law, 2d Ed., 371; Wliarton on Negligence, sec. 922; Tuell v. Watson, 47 Vt., 634; Corliss v. Smith, 53 Vt., 522; Baldwin v. Casella, 7 Court of Exchequer, p. 305.
    All joint tort feasors are jointly and severally liable at the election of the plaintiff. Boyd v. Watt, 27 Ohio St., 259; 6 Taunton, 29; 1 Washburn, 187; Bates’ Pleadings, vol. 1, p. 57; Pomeroy’s Code Remedies, sec. 281.
    Plaintiffs in error fail to recognize the distinction between wrongs ex contracto and wrongs ex delicto. In a suit against several joint tort feasors a reviewing court has the right, on petition in error in action for torts ex delicto, to treat the judgment as an entirety, or hold it good as to some of the defendants, and discharge it as to others, if, in the opinion of the court, the verdict should or should not have been rendered against all of the defendants. Rengler v. Lilly, 26 Ohio St., 48; Mead v. McGraw, 19 Ohio St., 55; Heffner v. Moyst, 40 Ohio St., 112.
    Power of a court to reverse a judgment implies power to modify. 28 Ohio St., 236; Quilty v. Battie, 135 N. Y., 201; Pomeroy’s Code Remedies, 3rd Ed., secs. 307, 314; Buswell, Personal Injuries, 36.
    The person who harbors a dog as a watch dog is chargeable with knowledge that its character is so ferocious as to make it unsafe to allow it to remain unconfined. Hayes et al. v. Smith, 8 O. C. D., 108; 15 C. C. R., 328; Wolf v. Chalker, 31 Conn., 131; Ray on Negligence, page 615.
   Davis, J.

The counsel for the plaintiffs in error have very ably and plausibly argued that the gist of this action is the keeping of the dog after knowledge that he was vicious and dangerous, and that unless it be alleged and proved that this knowledge was joint, or that the defendants below were acting in concert, they could not be jointly sued and there could be no joint recovery against them. The defendants have earnestly and persistently kept this theory of the case before all the courts by motion, demurrer, answer and argument; and this is done with such evident sincerity that we think that this contention is entitled to consideration before we proceed to the matters on which we dispose of this case.

The real foundation of an action like the one at bar is not the keeping or harboring of the animal, as was said in one of the courts below, for he may be kept as a watch dog for the protection of the keeper’s person or property. Nor is it merely the keeping and harboring of the dog after knowledge» of his vicious and dangerous propensities and habits; for if he were cowardly, indolent and peaceable, he would not be of much service as a guardian of person or property. A person who has need for a watch dog, of necessity chooses one of more or less brute ferocity, and the law has never yet said that he may not lawfully keep such a protector by him; but the very qualities of the animal for such a purpose require that he shall be securely kept, so that injury may not result to innocent persons, who may be where they have a right to be and are in the pursuit of lawful purposes. Hence the gist of such an action as this is not the keeping of the dog with knowledge of his dangerous nature, but rather the negligent failure to properly restrain the animal, and to keep him so safely that he may not injure any one who is lawfully at the place.

Following this principle that the action is based on the negligent keeping, it has been laid down as the law, in many cases, that when it has been shown that the animal has been kept after knowledge of his dangerous character has been acquired, or circumstances from which the law would imply knowledge, and an injury has followed, this would be prima facie evidence of negligence. Ray on Imposed Duties, Personal, 618, 619; 2 Am. & Eng. Ency. Law (2nd ed.), 368.

One may thus negligently keep and harbor a vicious dog, knowing him to be such, without being the owner of the animal; and he may thus keep and harbor a vicious dog without even owning or controlling the premises where he may be kept; and he may be chargeable with notice of the viciousness of the dog through his neglect to take notice of its vicious habits. Knowles v. Mulder (Mich.), 16 Am. St. Rep., 627 and cases cited in note; Brice v. Bauer, 2 Am. St. R., 454 and cases cited. It follows that there is nothing illogical, inconsistent, impracticable or illegal in charging two or more persons with negligently keeping and harboring a dog, with knowledge that he was vicious and dangerous. If the proof should sustain the charge as to all, the verdict and judgment would be against all. If the charge should be supported by the evidence as to some of the defendants and not as to others, the verdict and judgment should be against those so found guilty of the negligence charged.

There is no misjoinder of defendants apparent on the face of the pleadings in this case; the rights of the several defendants were carefully guarded by the trial judge in submitting the case to the jury, and, although the evidence is rather weak as to some of the defendants, there is not a total want of evidence as to any, when the case is viewed in the light of the principles which we have here indicated. It is not the province of this court to weigh the testimony. We therefore find no error in the mode in which this suit was brought, nor in the joint judgment against all of the defendants.

Of the other errors alleged upon this record, three, ' at least, require especial attention.

On the trial of the case in the common pleas court, one Charles J. Patterson was examined as a witness in behalf of the defendants. On the cross-examination of this witness he was asked the following question:

Q. Did you say to Amelia Kern on a week ago last Tuesday morning here in the court house, you don’t want to say anything against Hayes’, if they ask you if the dog was cross then you must say no, the reason they shut the dog up was because they would lay in the front room on the carpet in front of people, and if you didn’t there, if you would stick to the Hayes’s I would give you $10.00, $15.00 or $25.00, and if you stuck to Smiths you wouldn’t probably get anything, you want to work for your own pocket book, did you say that to her?

The answer of the witness was a denial, except that he admitted that he had told Amelia Kern, in answer to a question by her, Avhy the dogs were shut up. Amelia Kern was afterwards permitted, over an objection by defendants, to contradict Patterson. The ground on Avhich this testimony was admitted, as stated by the court, was that it tended to show prejudice or bias on the part of the witness; and the court especially cautioned-the jury that this testimony was not to be considered except as affecting the credit of the witness Patterson. There was no error in this. It is clearly within a well recognized exception to the rule as to evidence collateral t-o the issue. Kent v. State, 42 Ohio St., 426; Attorney General v. Hitchcock, 1 Wels., Hurl., & G., 90.

A more serious question arises concerning the hypothetical questions propounded to the witnesses Lucy Keeler, George O. Harlan, William E. Lang and A. H. Jackson. The counsel for the defendants inquired particularly of each of these witnesses as to their actual knowledge of the dog, his habits, manner and conduct, and in every instance followed this line of inquiry with substantially this question: “From your knowledge of the dog, what do you say as to his being a peaceable, quiet dog?”

It was said by Owen, J., delivering the opinion of this court in Railroad Co. v. Schultz, 43 Ohio St., 283; “Where it is practicable to place palpably before the jury the facts supporting their opinions, the witnesses should be restricted in their testimony to such facts, and the jurors left to form their opinions from these facts, unaided by the mere opinions of the witnesses.” And see Torpedo Co. v. Fishburn, 61 Ohio St., 608.

But whether this question was properly permitted or not, it was asked and answered without objection from , the plaintiff, and the trial judge was right in holding that the cross-examination of these witnesses' should be as broad as the examination in chief. But the defendants complain that the cross-examination was allowed to be made much broader than the examination in chief; and we think that their contention is a just one. It is true that the trial judge, in overruling the objection to the question on the cross-examination of the witness Lang, remarked: “It is not for the purpose of giving the jury his opinion of this dog on trial, but simply cross-examination on his standards of opinion. It is all the time a question for the jury to determine whether or not this dog was vicious or not.” . The questions which were allowed, however, went much further than to test the standards of the opinions which had been expressed by each of the witnesses. Each witness had expressly given his opinion of the disposition of the dog, as based on the actual knowledge of the witness. The plaintiff’s counsel were not content to show that the witness had no knowledge of specific instances of conduct by the dog, which would indicate a different disposition from that testified to, ánd were not content to let the jury draw the inferences as to the weight to be allowed to the opinion of the witness, in view of such lack of a broader knowledge of the habits of the dog; but the plaintiff was per. mitted to assume a state of facts, not Avithin the knowledge of the witness, and upon that to demand of the non-expert witness, an opinion as to one of the material facts in issue in the case, a fact, too, as to which the testimony of experts was not competent. The question called for the hypothetical opinion of each witness so interrogated, in a matter which did not involve scientific knowledge or skill, and substituted that opinion for the deliberate judgment of the jury upon the sworn facts of the case. That was the effect of this line of inquiry, notwithstanding the reason given for it by the trial judge. This was reversible error.

The defendants also insist that they were deprived of a fair trial by misconduct of the plaintiff’s counsel on the argument to the jury. The facts are given in the statement and need not be repeated here. The language which was objected to is reprehensible to the last degree. It is none the less reprehensible and none the less inexcusable, because it Avas spoken by counsel of standing and ability. Thus spoken and passing unrebuked by the court, although the attention of the latter was frequently challenged by the counsel for defendants, it could not fail to impress itself on the jury as sanctioned by the character of the counsel and approved by the trial judge. Just and severe invective, which is supported by the testimony, is not improper. A generous latitude should be allowed to counsel; but the argument should always be decorous and should not impair the impartial administration of justice. Therefore, as it was held by the supreme court of North Carolina, in Coble v. Coble, Admr., 79 N. C., 589, “it is not within the privilege of counsel, in argument to a jury, to use language calculated to humiliate and degrade the opposite party in the eyes of the jury and by-standers, particularly when he has not been impeached.” The charge that the defendants were engaged in a phe-> nomenal effort to suppress the truth and that they had made use of their wealth for the express purpose of keeping out the truth, was a serious and uncalled for attack on the integrity of the defendants and their counsel; and it cannot he excused as a reference to the numerous objections to evidence which are apparent in the record, because it is the right of a party to make such objections, and it is not the right of his adversary to charge him with bad motives in doing so. Nor wall we hunt for excuses to palliate the impropriety of discussing evidence alleged to have been ruled out, or of stating or suggesting as facts matters which were objected to as not having been given in evidence, when the court sits mute, when appealed to expressly upon these points.

“It may be laid down as law, and not merely discretionary, that when counsel’grossly abuses his privilege to the manifest prejudice of the' opposite party, it is the duty of the judge to stop him then and there. If he fails to do so, and the impropriety is gross, it is good ground for a new trial.” Jenkins v. N. C. Ore Dressing Co., 65 N. C., 563.

“No duty incumbent on the judge of a trial court is more imperative, nor more important to the fair and orderly administration of justice, than that of interposing to restrain everything in the course of the trial that tends to mislead the jury and to divert their minds from the strict line of inquiry with which they are charged.” Davis v. Hill, 75 N. Car., 224; Evans v. Trenton, 112 Mo., 390. “The courts have usually been very firm, whenever occasion has required, in confining counsel within proper and reasonable bounds to whatever is pertinent to the matter on trial. Statements of alleged facts not adduced in evidence, and comments thereon are irrelevant, not pertinent and are therefore clearly not within the privilege of counsel; and any such practice on the part of counsel should be promptly checked, especially when objected to by the other side.” Rolfe v. Rum- ford, 66 Me., 566, citing Berry v. State, 10 Ga., 511; Mitchum v. State, 11 Ga., 615; Bulloch v. Smith, 15 Ga., 395; Dickerson v. Burke, 25 Ga., 225; Wright-man v. Providence, 1 Clifford, 521, and Tucker v. Henniker, 41 N. H., 317.

“That the practice complained of is highly reprehensible, no one can doubt. It ought in -every instance to be promptly repressed. For counsel to undertake by a side wind to get that in as proof which is merely eonjecturé, and thus to work a prejudice in the mind of the jury, cannot be tolerated. Nor ought the presiding judge to wait until he is called on to interpose. For it is usually better to trust to the discrimination of the jury as to what is, and what is not, in evidence, than for the opposite counsel to. move in the matter. For what practitioner has not regretted his untoward interference, when the counsel thus interrupted resumes. ‘Yes, gentlemen, I have touched a tender spot, the galled jade will wince; you see where the shoe pinches!” Berry v. State, 10 Ga., 522.

An apt illustration of the truth of the last quotation, and of the evil of non-interference by the court, is presented in that which took place in this case when the counsel made objection to certain statements of plaintiff’s counsel.

The record shows that the counsel for the defendants addressed his objections to the court at the time the improper language was spoken. The defendants, therefore, did not waive any of their rights; and, although it does not appear that the court then, or at any time, took any notice of the objections, the defendants had done all that they decently could do to obtain action by the court, and cannot be prejudiced by its failure or refusal to act.

The distinction between this case and that of The Warder, Bushnell & Glessner Co. v. Jacobs, 58 Ohio St., 77, is that in this case we have a full record, embodying all of the evidence, the arguments of counsel, the charge of the court, ruling on the motion for new trial, etc., so that upon an inspection of the whole record there is no room for a presumption that the trial court did its duty in the premises. On the contrary it thus appears that the court took no notice of the objections raised by the counsel for defendants, and refused to rectify its error on the motion for a new trial.

Judgment reversed.  