Baker v. Kinsey

Sanderson, J. delivered the opinion of the Court: This is an action to recover damages for personal injuries sustained from a bite by a vicious dog. The plaintiff was nonsuited as to Eastman, one of the defendants, but recovered as against the others, Kinsey and Dyer. Kinsey moved for a new trial without success, and then brought the case here, and asks a reversal upon the grounds, First-—That so far as he is concerned, the verdict is not sustained by the testimony; and, Second—That in respect to him, the charge [633]of the Court was erroneous. But a separate consideration of these grounds is not deemed necessary.

The testimony shows that the defendant, Dyer, was in the employment of the defendant, Kinsey, and one Whitely, as keeper and collector of tolls, at a bridge near Folsom, which bridge and toll franchise was the joint property of Kinsey and Whitely. That both Kinsey and Whitely were non-residents of Folsom—the former being a resident of San Francisco, and the latter of the State of New Jersey. That the defendant, Eastman, resided at Folsom, and acted as agent of Kinsey and Whitely in employing Dyer as keeper, and in receiving from Dyer the tolls, and transmitting them to Kinsey and Whitely; that Dyer procured the dog, while a pup, through Eastman, at his own suggestion, and kept him at the bridge as a companion, and because he had a fancy for dogs. That the dog was vicious and accustomed to bite mankind, and that he was not securely kept by Dyer, but was suffered at times to go at large, without being guarded or muzzled. That the vicious disposition of the dog was known to Dyer and Eastman. But the testimony fails to show that either Kinsey or Whitely ever heard of the dog, or that they had directed Dyer or Eastman to keep a dog at the bridge, or that they had consented that one should be kept there, or that there was any reason or necessity for keeping a dog at the bridge, so far as any interest of Kinsey or Whitely was concerned.

It thus appearing that Kinsey did not, in fact, keep or harbor the dog in person, and did not, in fact, authorize or require him to be kept, and did not, in fact, need that the dog should be kept for the conduct or protection of the business in which Dyer was employed, or as an assistant to Dyer, it is obvious that there can be no ground or principle of law upon which the verdict can be sustained, unless it be the doctrine of respondeat superior. In view of these facts, unless Dyer acted as the servant of Kinsey, in the matter of keeping and harboring the dog, Kinsey cannot be held responsible for the injuries which the plaintiff sustained; for that relation, in the particular act of which complaint is made, is