
    Archie D. Van Etten, Respondent, v. Sarah Noyes, Appellant.
    Fourth Department,
    November 11, 1908.
    Animals—tort — communication of rabies to other animals -r- liability of owner — trespassing dog.
    Where the owner of a dog did not know and had no reason to believe that the , animal was suffering from rabies, or had a vicious nature, he is not liable for the death of a cow which was bitten by the dog and contracted the disease.
    This is true although the dog at the time he bit the cow was trespassing.
    The statute making the owner of a dog absolutely liable for the value of sheep killed by it is not applicable where injury is inflicted on a cow by a dog suffering from rabies.
    McLennan, P. J., dissented.
    
      Appeal by the defendant, Sarah Noyes, from a judgment of the County Court of Steuben county in favor of the plaintiff, entered in the office of the clerk of said county on the 12th day of March, 1907, upon the verdict of a jury for sixty-five dollars, after a new trial duly demanded in said court, on an appeal from Justice’s Court, and also from an. order entered in said clerk’s office on the 5th day of March, 1907, denying the defendant’s motion for a new trial made upon, the minutes.
    
      Willard S. Reed, for the appellant.
    
      Warren J. Cheney, for the respondent.
   Kruse, J. :

The plaintiff’s cow was bitten by a mad dog. The disease from which the dog was suffering was communicated thereby to the cow, and she died. The plaintiff claims that the defendant owned or harbored the dog, and seeks to recover the value of the cow.

While the evidence is sufficient to establish the fact that the defendant owned or harbored the dog, we are, nevertheless, of the opinion that the plaintiff has failed to establish any liability against the defendant, for the reason that the evidence fails to show that the defendant knew or had any reason to believe that the dog was suffering from rabies, or had a vicious nature or harmful disposition.

The two incidents upon which the plaintiff relies to establish that the dog was vicious and likely to bite cattle, we think, do not warrant that conclusion. Upon one occasion a lady was riding on á bicycle, and the dog ran out in the road and grabbed the wheel; and at another time a peddler attempted to go into the yard where the dog belonged, and the dog stood his ground and prevented the stranger from entering the yard. On neither occasion. did he hurt any one.

The evidence shows that the dog suddenly became mad and uncontrollable, and while in this frenzied state entered the plaintiff’s premises and did the harm complained of. Indeed, there does not seem to be any dispute over the fact that the dog was rabid at the time he bit the cow, and there is no evidence showing or tending to show that the defendant knew or suspected, or had any information which would lead her to believe that the dog was afflicted with rabies until after the harm was done. Under such circumstances, we .think there is no ground for holding the defendant liable in damages. As was stated by Judge Cooley in Elliott v. Herz (29 Mich. 202): “ Injury from the bite of a rabid dog must be classed with those from inevitable accident, which the law always leaves to rest where they chance to fall, because, as no one was in fault, there is no basis for an assessment of damages' against any one.”

It is contended upon the part of the plaintiff, however, that since the-dog entered into his premises and bit the cow there, a trespass was' committed, and the defendant is liable for all the harm which the dog did there, regardless of her want of knowledge of the' abnormal condition of the dog. ,

It is true that the owner of domestic animals, such as cattle, is generally"liable for every unwarrantable entry by the animal upon the lands of another; hut we think that it is not the law that one who owns or harbors a dog is liable in trespass every time the dog goes upon the lands of another. The general rule is that the owner is not liable for harm -done by his dog unless it-appears that the dog was of a mischievous disposition or vicious propensity,-. and the owner had previous knowledge thereof,, or was chargeable- with notice that the dog was harmfully disposed. (Brown v. Giles, 11 Eng. Com. Law Rep. 337; Bupton’s Law Relating to Dogs, 55 ; Ingham’s Law of Animals, 277 ; 2 Am. & Eng. Ency. of Law [2d . ed.], 368; O'Connell v. Jarvis, 13 App. Div. 3; Buchanan v. Stout, 123 id. 648.)

This rule was early changed as regards the killing -of sheep by dogs. In colonial times, and as early as 1732, an act (2 Colonial Laws [Comp. Stat. Rev. Com.], 735, chap. 574) was passed making the owner of a dog liable absolutely for the value of sheep killed by his dog, and this law, in substance, has ever since been retained in' our statutes. It is now incorporated in the County Law (Laws of 1892, chap. 686, art. 6, as amd.). We are not aware, however, that it has ever been extended so as to include a case like this, or that the courts of our State have ever held that one who owns or harbors a dog is liable in a case such as this.

The questions here were, raised by appropriate exceptions, and upon the whole ease we think the plaintiff is not entitled to recover. \

The judgment and order denying the motion for a new trial should be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred, except McLennan, P. J, who dissented upon the ground that the dog of the defendant being a trespasser upon the plaintiff’s property, the defendant was liable for the damage.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  