Scottish Court of Session Decisions

William Brown, farmer, Burnton, in the parish of Laurencekirk, brought an action in the Sheriff Court of Aberdeen and Kincardine against David Scott Porteous, Esq., of Lauriston, and William Murray, farmer, Stoneydale, concluding for decree against the defenders, jointly and severally, for £250 in name of damages for the loss of a number of pursuer's sheep and lambs which he alleged to have been destroyed and injured by two dogs belonging to the defenders respectively.

The pursuer averred—“(Cond. 2) During the night of Saturday the 24th or morning of Sunday the 25th of July 1880, or about that time, a dog, the property of the defender Mr Porteous, and another dog, the property of the defender Mr Murray, having been culpably and negligently allowed to go at large and unsecured in any way, invaded the pursuer's said grazings, and set upon, attacked, and worried, or otherwise ran down, destroyed, and killed, seventy lambs and nine ewes belonging to the pursuer, and so disturbed, frightened, and exhausted the remainder of the flock by pursuing them that they were greatly deteriorated in value, all to the serious loss, injury, and damage of the pursuer.”

The dog for which Mr Porteous was alleged to be responsible was an old collie which belonged to the tenant of one of his farms, who having been obliged, owing to embarrassed circumstances, to vacate his farm at Whitsunday 1880, had left the dog there. Mr Porteous was informed by his steward of this fact, and being told that the dog was not troublesome, he allowed it to remain at the farm, where it was fed at his expense. Both defenders denied the guilt of their respective dogs.

Proof was led before the Sheriff-Substitute ( Comrie Thomson). The case against both dogs depended mainly on the testimony of a witness named Paterson, who deponed that he saw the sheep worried by them. Some evidence was led with a view of impugning Paterson's credibility as a witness. On behalf of Murray's dog there was some evidence in support of a plea of alibi, the Murray family swearing that the dog slept in the house on the night in question. With regard to the pursuer's allegations of fault on the part of the owners, there was evidence to show that Mr Porteous' dog had been known to handle sheep harshly, that neither dog was in use to be tied up at nights, that the two dogs had frequently been seen in company together, sometimes at night, and that Murray's dog was of a ranging disposition. There were also witnesses who spoke to the previous good character of both dogs.

The Statute 26 and 27 Vict., c. 100 (an Act to render owners of dogs in Scotland liable in certain cases for injuries done by their dogs to sheep and cattle, 1863) provides—“Sec. 1. In any action brought against the owner of a dog for damages in consequence of injury done by such dog to any sheep or cattle, it shall not be necessary for the pursuer to prove a previous propensity in such dog to injure sheep or cattle. Sec. 2. The occupier of any house or place or premises in which any dog which has injured any sheep or cattle has been usually kept or permitted to live or remain at the time of such injury shall be liable as the owner of such dog, unless such owner can prove that he was not the owner of such dog at the time the injury complained of was committed, and that such dog was kept or permitted to live or remain in the said house or place or premises without his sanction or knowledge.”

The Sheriff-Substitute ( Comrie Thomson) found the case proved as against the dog belonging to Mr Porteous, but that it was not proved that the dog which accompanied it was the defender Murray's dog; assoilzied Murray accordingly, and found Porteous liable in damages, assessed at £75.

In the note appended to his interlocutor, after referring to the remarks of the Lord President in the case of M'Intyre v. Carmichael, 8 Macph. 570, quoted by Lord Shand in his opinion infra, he proceeded thus—“Accordingly in that case the Court varied the terms of the interlocutor under review, and in place of finding merely that the damage was caused by the defender's dogs, they also found that the damage was occasioned through the defender's fault. I do not, however, read that judgment as settling that there must be

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culpa brought home to the owner of the dog that does the mischief before he can be held liable in damages. If that were a sound view of the law, my decerniture against Mr Porteous would be justified only on the footing that he ought to have made inquiry as to the past history of the dog, and to have kept him shut up when unaccompanied. There is no evidence that either Mr Porteous or his servants had any cause to suspect that the dog was of bad character. My judgment accordingly proceeds mainly upon the view that if one of the dogs is identified to belong to one of the defenders he is responsible for the damage which that dog caused. The direct evidence in the case consists of the testimony of the witness Paterson, and the important inquiry is whether there are circumstances proved sufficient to corroborate his evidence…. It is undoubtedly a very hard case for the defender Porteous. He had never seen the dog, and apparently it was only through good nature that he had allowed himself to assume the position of its owner. By the 2d section of the statute above referred to it is proved that the occupier of any place in which a dog which has injured any sheep or cattle has been usually kept or permitted to live or remain at the time of such injury shall be liable as the owner of said dog, unless he can prove that he was not the owner of the said dog, and that such dog was kept or permitted to live or remain in the place without his sanction or knowledge. In the present case the dog in question had belonged to a tenant of Mr Porteous who gave up his farm, leaving his dog behind him. The farm was taken into the defender's own management, and was occupied by his servants. On the defender's overseer mentioning to him that the dog had been left by the previous occupant, he consented to let it remain, and it was subsequently fed and otherwise treated as the defender's own dog. As to the amount of damages, I confess to feeling very great difficulty. There were undoubtedly two dogs engaged in the worrying, and it is impossible to say how much damage was caused by each. The principle, however, that persons jointly concerned in the perpetration of a wrongful act are liable singuli in solidum does not seem to me to apply to a case such as this. I am following the precedent of the case of M'Intyre, above quoted, in finding the defender Porteous liable only in one-half of the damage sustained by the pursuer. The expenses due by the defender Porteous to the pursuer will be subject to very substantial modification.”

The pursuer having appealed, the Sheriff ( Guthrie Smith) recalled the Sheriff-Substitute's interlocutor and pronounced the following findings:—“Finds it proved that on the morning of the 25th of July 1880 two dogs, one the property of the defender Murray, and the other dog for which the defender Porteous is liable under Statute 26 and 27 Vict., c. 105, as owner or occupier of the premises where he was usually permitted to live, trespassed on the grazings occupied by the pursuer adjacent to his farm of Burnton, and attacked and worried a flock of sheep, his property, to the loss, injury, and damage of the pursuer; assesses the damage at £120 sterling, for which decerns: Finds the defenders liable in expenses,” &c.

In the course of his note the Sheriff observed—“… As the Sheriff-Substitute observes, the case is a hard one for Mr Porteous, who is now involved in considerable liability from his allowing a dog, as a piece of good nature, to remain about the premises when the farm was taken over from the former tenant. But as a wandering ownerless cur is the very dog likely to prove mischievous to a neighbourhood, the Act of Parliament has been carefully expressed to meet such a case as the present, it being enacted that the person who permits a dog to go about the premises is to answer for his conduct just as if he were the owner—26 and 27 Vict., c. 105, sec. 2. The claim is substantially still an action of damages, and the only change effected by the statute is, that whereas in such an action it was formerly necessary to prove the owner's knowledge that the dog was in use to kill sheep (as in Turnbull, Elchies, 1735), evidence to this effect is not now required. It follows that the damages cannot be separated. The trespass committed on the pursuer's flock was one wrong; the two defenders are jointly charged. If one only of the dogs had been convicted, the owner must have been held liable for the full amount of the pursuer's loss, and in like manner when both are held guilty the judgment must go against both for the entire sum—2 Sedge-wick on Damages, 624. As in the case of M'Intyre, referred to by the Sheriff-Substitute, this point was not taken, the present decision does not seem to the contrary.”

The defender Murray appealed to the Court of Session. The defender Porteous took advantage of Murray's appeal to appear there also.

Argued for Murray—(1) On the evidence the charge was not proved against his dog. The identification was incomplete, and the defence of alibi was well established. (2) No fault or negligence had been proved on the part of Murray. This was necessary to the pursuer's success, the statute of 1863 not relieving him of the previous common law duty to prove culpa on the owner's part— Fleeming v. Orr, April 3, 1855, 2 Macq 14; M'Intyre v. Carmichael, February 18, 1870, 8 Macph. 570.

Argued for defender Porteous—(1) On the evidence the guilt of the dog for which Porteous must under section 2 of the statute be held responsible was not made out. (2) No fault or negligence on Porteous' part had been proved. The Scotch Act of 1863 did not relieve the pursuer of the necessity of establishing fault on the owner's part. The absence of such a provision was marked strongly by comparison with the corresponding clauses of the Irish (25 and 26 Vict., c. 59, 1862) and English Acts (28 and 29 Vict., c. 60, 1865), which provided that it should not be necessary for the person claiming damages in such cases “to show a previous mischievous propensity in such dog, or the owner's knowledge of such propensity, or that the injury was attributable to neglect on the part of such owner.” See also Barr v. M'Isaac and Kemp, December 2, 1864, Guthrie's Select Cases in Sheriff Court, 498. (3) In any view, Mr Porteous should not be found liable in more than half the estimated damage, as two dogs had undoubtedly been engaged in the worrying. The principle of the conjunct liability of wrongdoers could not fairly be extended to the case of dogs, who cannot be held to have any mischievous intent—Inst. iv. 9— Si quadrupes pauperiem fecisse dicatur. In M'Intyre v. Carmichael,

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though this point did not appear to have been taken, the Court gave effect to the principle of several liability now contended for.

Replied for the pursuer—(1) The case, though stronger against Porteous' dog, was well made out against both dogs. (2) Fault had been proved against both owners in respect of allowing their dogs to be loose at night. But even assuming otherwise, it was not necessary to the pursuer's success to establish fault. The intention of the Scotch Act, though its terms were less explicit, was obviously the same as that of the Irish and English Acts. The effect of the statute was to reverse the previous legal presumption that the dog was an animal mansuetœ naturœ. The establishment of the mere fact of ownership was sufficient to infer the owner's liability—Campbell on Negligence (ed. 1878), p. 53. (3) The principle of conjunct liability applied.