MISSIO et al. v. WILLIAMS. (Supreme Court of Tennessee. May 23, 1914.) 1. ANIMALS (§ 72*)-INJURIES TO PERSONSLIABILITY. The owner of premises, who permits another to harbor thereon dogs which the owner knows are vicious, is liable for injuries inflicted by the dogs upon another. [Ed. Note. For other cases, see Animals, Cent. Dig. §§ 242-250; Dec. Dig. § 72.*] 2. ANIMALS (§ 70*)-INJURIES TO PERSONSLIABILITY-KNOWLEDGE OF VICIOUS CHAR ACTER. The owner or keeper of a domestic animal is not liable for injuries inflicted by the animal, unless he has knowledge of its vicious habits; but, where he has such knowledge, his liability is not limited to negligence in the custody of the animal, but he is bound to keep the animal from doing mischief. Bell, Terry & Bell, of Memphis, for plaintiff. L. T. M. Canada, of Memphis, for defendants. LANSDEN, J. The defendant in error recovered judgment in the court below against the plaintiff in error and her husband, R. L. Missio, for $300 for personal injuries inflicted upon the defendant in error by two bull dogs which were kept on the premises of the plaintiff in error. Motion for a new trial was made and overruled, and an appeal was taken to the Court of Civil Appeals, where the judgment of the circuit court was affirmed. The case is before us upon a petition for certiorari to the judgment of that court. The facts are that a brother of Mrs. Missio, [Ed. Note.-For other cases, see Animals, one Coradini, procured two bull pups and Cent. Dig. §§ 225, 228-237; Dec. Dig. § 70.*] kept them on the premises of Mr. and Mrs. 3. ANIMALS (§ 70*)-PERSONAL INJURIES-LI- Missio for protection to Mr. and Mrs. CorABILITY-KNOWLEDGE OF VICIOUS CHARAC-adini. The dogs were known by the Cora TER. Knowledge by the owner or keeper of a dog that it is vicious is sufficient to render him liable for injuries inflicted by the dog, without a showing that it had ever before bitten any per son. [Ed. Note.-For other cases, see Animals, Cent. Dig. §§ 225, 228-237; Dec. Dig. § 70.*1 4. ANIMALS (__70*)—INJURIES TO PERSONSLIABILITY-WILD ANIMALS. Owners or keepers of animals which are naturally vicious are liable for the acts of such animals, even though no notice of their vicious propensities is shown. dinis and Mrs. Missio to be dangerous, and they were kept because of their dangerous and vicious habits. A sign was put up on the yard fence where the dogs were kept, "bad dogs." Before the dogs were brought upon the premises, Mr. and Mrs. Missio left Tennessee for a visit to Italy, and Mr. Missio did not know of the presence of the dogs on the premises until after the defendant in error was injured by them. Mrs. Missio, however, [Ed. Note.-For other cases, see Animals, returned home in September, before the deCent. Dig. §§ 225, 228-237; Dec. Dig. § 70.*1 | fendant in error was attacked by the dogs 5. HUSBAND AND WIFE (§ 102*)-LIABILITY in October, 1911, and she knew that her OF WIFE-TORTS. brother had the dogs on the premises, and the purposes for which they were kept. A married woman who permitted, during her husband's absence, another to keep vicious dogs on her premises is liable for the injuries inflicted by them, since she is liable for her own personal torts not committed in the presence or under the supposed influence of her husband. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 378-380; Dec. Dig. § 102.*] 6. HUSBAND AND WIFE (§ 102*)-LIABILITY OF WIFE-NEGLIGENCE OF HUSBAND. A married woman is not liable for torts committed through the negligence of her husband under the rule respondeat superior, since she is not liable ex contractu. [Ed. Note. For other cases, see Husband and Wife, Cent. Dig. §§ 378-380; Dec. Dig. § 102.*] 7. HUSBAND AND WIFE (§ 214*)-LIABILITY OF HUSBAND-TORTS OF WIFE. Where a married woman, during her husband's absence, permitted vicious dogs to be kept upon her premises, the husband is liable jointly with her for injuries inflicted by the dogs upon another. [Ed. Note. For other cases, see Husband and Wife, Cent. Dig. §§ 791-794; Dec. Dig. § 214.*] Certiorari to Court of Civil Appeals. Action by Carrie Williams against Irene Missio and another. A judgment for the plaintiff rendered by the circuit court was affirmed on appeal by the Court of Civil Appeals, and the defendants petitioned for certiorari. Writ of certiorari denied. The house and lot constituting the premises are the property of Mrs. Missio. She and her husband, her father, and mother, and brother lived together in this house. The defendant in error is a scrubwoman and worked at the Peabody Hotel at night. She finished her labors for the night and boarded a street car to go home about daylight of the morning of the accident. She alighted from the street car near the premises of the plaintiff in error, and started down the street known as Kings Highway, when the two dogs rushed out of the yard and assaulted her and inflicted serious injuries upon her person. Missio's plea of coverture is good, and that The questions made here are that Mrs. Mr. Missio is not liable, because he did not know of the presence of the dogs on the premises, and hence did not harbor them. And also that the mere fact that the dogs were on the premises with the knowledge of Mrs. Missio would not make either her or her husband liable, because they were owned by the Coradinis, and were kept on the plaintiff in error's premises by Coradini, and not by them. [1-3] What is perhaps the earliest rule upon this subject is found in Exodus, chapter 21, 28th and 29th verses, as follows: "If an ox gore a man or a woman, that they die: then the ox shall surely be stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit. "But if the ox were wont to push with his horn in time past, and it hath been testified to his owner, and he hath not kept him in, but that he hath killed a man or a woman; the ox shall be stoned, and his owner also shall be put to death." But the general rule at this time respecting the liability of owners or keepers of domestic animals for injuries to third persons is that the owner or keeper of domestic animals is not liable for such injuries, unless the animal was accustomed to injure persons, or had an inclination to do so, and the vicious disposition of the animal was known to the owner or keeper. Sherfey v. Bartley, 4 Sneed, 58, 67 Am. Dec. 597; Smith v. Causey, 22 Ala. 568; Le Forest v. Tolman, 117 Mass. 109, 19 Am. Rep. 400; Popplewell v. Pierce, 10 Cush. (Mass.) 509. And where an animal is accustomed or disposed to injure persons, and the owner or keeper has notice or knowledge of that fact, he is liable for any injury which such animal may do to another person. As stated in Sherfey v. Bartley, supra, he is "bound to have so confined him as to prevent him from doing mischief." Loomis v. Terry, 17 Wend. (N. Y.) 496, 31 Am. Dec. 306. The gist of the action is the keeping of the animal with notice of its vicious disposition, and not the negligence of the owner in its custody. Empire Spring Co. v. Edgar, 99 U. S. 645, 25 L. Ed. 487. And if a person harbors a dog accustomed to bite, or allows it to frequent his premises, he is liable, although not the owner of it. Frammell v. Little, 16 Ind. 251; Marsh v. Jones, 21 Vt. 378, 52 Am. Dec. 67; Wilkinson v. Parrott, 32 Cal. 102. Knowledge of the owner or keeper that the dog is vicious is sufficient to sustain liability, without showing that it had ever bitten any one. Rider v. White, 65 N. Y. 54, 22 Am. Rep. 600; Godeau v. Blood, 52 Vt. 251, 36 Am. Rep. 751. [4] Owners or keepers are liable for injuries done by them, even without notice of their vicious propensities, if the animals are naturally mischievous; but, if they are of a tame and domestic nature, there must be notice of the vicious habits. Empire Spring Co. v. Edgar. And where injury is done by domestic animals kept for use or convenience, the rule is that the owner is not liable to an action on the ground of negligence, without proof that he knew that the animal was accustomed to injure persons. Vrooman v. Lawyer, 13 Johns. (N. Y.) 339. If the latter class of animals are rightfully in the place where the injury is inflicted, the owner is not liable, unless he knew that the animal was accustomed to be vicious. In such case he must confine the animal so as to prevent it from doing mischief. Empire Spring Co. v. Edgar, supra; Sherfey v. Bartley, supra. The whole subject is fully covered in 1 R. C. L. under the title "Animals," and additional authorities, both early and late, will be found there. [5] The foregoing rules apply to persons who keep or harbor animals upon their premises with notice of their vicious disposition, whether they own them or not. Applying these principles to the facts stated, it is beyond doubt that Mrs. Missio, as the owner and occupant of the premises upon which her brother harbored the vicious dogs with her knowledge and consent, is liable for the injuries inflicted by them upon defendant in error, unless her plea of coverture is good. It is well settled, however, that a married woman is liable in an action for her torts not committed in the presence, or under the supposed influence of her husband. 2 Bishop on Married Women, 256; Schouler on Husband and Wife, 134; Dailey v. Houston, 58 Mo. 361; Marshall v. Oakes, 51 Me. 308; all cited and approved in Collier v. Struby, 99 Tenn. 241, 47 S. W. 90. [6, 7] The rule of respondeat superior does not apply to the torts of a married woman committed through the negligence of her husband because married women are not liable ex contractu; but the rule is otherwise, and, as just stated, where the action arises out of her personal tort. Collier v. Struby, supra. In this case the husband was not present and knew nothing of the action of the wife in harboring the vicious dogs, and of course the tort committed was not his personally, nor was it committed in his presence. Therefore the wife is liable for her personal tort. The husband is jointly liable with her because of their marriage relations. Price v. Clapp, 119 Tenn. 425, 105 S. W. 864, 123 Am. St. Rep. 730; 14 Am. & Eng. Enc. of Law, 647 et seq. Other questions are made in the petition and assignments of error which we deem it unnecessary to discuss in this opinion. The result is that the writ of certiorari is denied. WALKER v. LEMMA et al. (Supreme Court of Tennessee. May 23, 1914.) SUPERSEDEAS (§ 2*)—JURISDICTION—SUPREME COURT. Under Acts 1907, c. 82, § 8, providing for the review by the Supreme Court upon certiorari of the cases appealed to the Court of Civil Appeals, the Supreme Court can take jurisdiction of such cases only through that writ, and then only after final decree or judgment in the Court of Civil Appeals, and it has no jurisdiction to issue a writ of supersedeas suspending or discharging a supersedeas granted by the Court of Civil Appeals. [Ed. Note. For other cases, see Supersedeas, Cent. Dig. § 2; Dec. Dig. § 2.*] Appeal from Chancery Court, Marion County; V. C. Allen, Chancellor. Suit by J. T. Walker against F. E. Lemma NEIL, C. J. The question to be determined arises under a petition filed before this court to supersede an order of supersedeas granted by the Court of Civil Appeals against an order issued by the chancellor holding the chancery court of Marion county. It appears that a bill was filed in the chancery court referred to, enjoining the sale of land under a trust deed. The chancellor dis solved the injunction. The Court of Civil Appeals, on petition of the complainant in that case, granted a supersedeas against the chancellor's decree of dissolution. A motion was afterwards made in the Court of Civil Appeals to discharge the supersedeas and that court refused to do so. In the petition now filed before us, and its accompanying brief, it is insisted that the Court of Civil Appeals committed grave error in granting the supersedeas to the chancellor's order, and we are asked by the writ of supersedeas to suspend or discharge the supersedeas which the Court of Civil Appeals granted. We express no opinion upon the merits of the question, because in the view we take of the matter we have no jurisdiction. The bill presents a case lying wholly within the jurisdiction of the Court of Civil Appeals under section 7 of chapter 82 of the Acts of 1907 creating that court. We can take jurisdiction of cases in that court only through the writ of certiorari, and then only after final decree or judgment in that court. Acts 1907, c. 82, § 8. State Bank of Shaw, Miss., against J. D. Wilson and others. Bill dismissed, and complainant appeals. Reversed and remanded. Wilson & Armstrong, of Memphis, for appellant. Edgington & Edgington, of Memphis, for appellees. GREEN, J. This bill was filed by the com plainant to recover a certain indebtedness, be due from the defendants to the First State consisting of notes and overdraft, alleged to Bank of Shaw, Miss. The bill averred that the said bank was being wound up as an insolvent institution by the chancery court of Bolivar county, Miss., and that the complain ant had been appointed receiver of said bank of that court to collect all the assets of the by said court, and was authorized by decree same, and to bring all necessary suits. which challenged the right of complainant, as The defendants interposed a demurrer, to sue in the courts of Tennessee. a receiver appointed in a foreign jurisdiction, Subsequently the bill was amended by the following words: "That said complainant was, by virtue of his appointment as receiver in Bolivar county, Mississippi, vested with title and possession of said notes and said account, and that the same were turned over to him in said Bolivar county, Mississippi, by virtue of his office as receiver, and that he holds same, having there received title and actual possession of said notes and said evidences of account, and that there are no in the state of Tennessee whose rights would be creditors of the said bank nor of the parties affected in any way by this suit; that there is no receivership pending here, and no necessity for one; and that the maintenance of this suit would be in every way without any prejudice or influence. upon the rights of said parties, either in the state of Tennessee or elsewhere than in the state of Mississippi." On the bill as amended, the same point was made by another demurrer. The chancellor sustained the demurrer and dismissed the bill, and complainant has appealed to this court. There is a distinction between the right and power of a receiver in a foreign court, On the ground stated, the petition must be when that receiver is by statute or voluntary disallowed. HARDEE v. WILSON et al. (Supreme Court of Tennessee. May 23, 1914.) RECEIVERS (§ 210*) - FOREIGN RECEIVERS PERMISSION TO SUE. --- While a receiver, at least an ordinary chan cery receiver, has no legal right to sue in a state other than that of his appointment, the privilege of doing so will be accorded, as matter of comity; the suit being neither inimical to the interest of local creditors, or of any one who has acquired rights under a local statute, nor in contravention of the policy of the forum. [Ed. Note. For other cases, see Receivers, Cent. Dig. 88 417-420; Dec. Dig. § 210.*] Appeal from Chancery Court, Shelby County; Francis Fentress, Chancellor. assignment or conveyance vested with title to the assets of the estate he is administering, and the right of such receiver when he is a mere chancery court appointee. This difference is pointed out in Relfe v. Rundle, 103 U. S. 222, 26 L. Ed. 337; Converse v. Hamilton, 224 U. S. 243, 32 Sup. Ct. 415, 56 L. Ed. 749, Ann. Cas. 1913D, 1292; Howarth v. Lombard, 175 Mass. 570, 56 N. E. SSS, 49 L. R. A. 301; Howarth v. Angle, 162 N. Y. 179– 182, 56 N. E. 489, 47 L. R. A. 725. The distinction is also recognized in Bank v. Motherwell, etc., Iron Co., 95 Tenn. 172-181, 31 S. W. 1002. It is not necessary to consider this question here, because we do not think that the complainant, even according to the averments Suit by W. G. Hardee, receiver of the First of the amended bill, is the sort of receiver or quasi assignee referred to in the cases just cited, with authority to maintain suits in other jurisdictions. Although in the amendment to the bill it is said this complainant was vested with title to the assets of the defunct bank, the statement is a mere conclusion announced by the pleader. No statute, nor conveyance or assignment conferring title upon the receiver, is set out, and so far as we can see he is only an ordinary chancery receiver. The question is, then, whether we shall permit such an officer of a foreign jurisdiction to maintain a suit of this character in Tennessee. It is well settled that the receiver of a foreign court may not, as a matter of right, sue in the courts of this state. Bank v. Motherwell Iron Co., 95 Tenn. 172, 31 S. W. 1002; Dillingham v. Insurance Co., 120 Tenn. 302, 108 S. W. 1148, 16 L. R. A. (N. S.) 220. This rule as to foreign receivers was announced by the Supreme Court of the United States in Booth v. Clark, 17 How. 322, 15 L. Ed. 164, and is very generally accepted throughout all the states of the Union. See High on Receivers (4th Ed.) § 239. In Dillingham v. Insurance Co., 120 Tenn. 302, 108 S. W. 1148, 16 L. R. A. (N. S.) 220, there was a contest between the Illinois receiver of a foreign insurance company and a citizen of Tennessee, who was a creditor of this company. The property of Mrs. Dillingham, covered by a policy of insurance in said company, was destroyed by fire, and she attached certain assets of the insurance com pany in Nashville to satisfy her demand. The receiver of the company attempted to recover the assets, and was denied the right to sue by this court. So neither Dillingham v. Insurance Co. nor Bank v. Motherwell, etc., Iron Co. is in point here. The bill distinctly avers that the present suit can be maintained without prejudice to the rights of any other creditors protected by the laws of Tennessee. It was said, generally speaking, in both of these cases, that a foreign receiver was without authority to bring a suit beyond the jurisdiction of the court appointing him. This is undoubtedly true as a question of legal right, and it was from this standpoint the question was considered in these cases. A foreign receiver is not entitled to demand a hearing in the courts of this state. Other considerations control, however, when a foreign receiver comes into our courts and asks as a matter of comity to be allowed to sue here, and when it appears that the interests of no local creditor, nor any other creditor protected by our statutes, will be prejudiced. The general expressions of the court in Bank v. Motherwell, etc., Iron Co., supra, are founded on a quotation from the work of High on Receivers, § 239, in which the author lays down the principle that a receiver has no extraterritorial right of action. Following this language, in the last edition of his work, the author enumerates a great many instances in which the courts have been opened to foreign receivers in cases which did not involve the interest of local creditors. He concludes the discussion as follows: "It is thus apparent that the exceptions to the rule denying to receivers any extraterritorial right of action have become as well recognized as the rule itself, and the tendency of the courts is constantly toward an enlarged and more liberal policy in this regard. And it is believed that the doctrine will ultimately be established, giving to receivers the same rights of action in all states of the Union with which they are invested in the state or jurisdiction in which they are appointed." High on Receivers (4th Ed.) § 241. In Bank v. Motherwell Iron Co., 95 Tenn. 172, 31 S. W. 1002, an Ohio judgment creditor of the Motherwell Iron Company, having exhausted his legal remedies against the said company in Ohio, filed a bill in the chancery The New York court has well stated the court of Shelby county to subject to satisfaction of his judgment certain property of the prevailing modern doctrine as follows: iron company located in Memphis. This bill "The plaintiffs are receivers of a corporation chartered in the states of Pennsylvania and New was filed under the provisions of Shannon's Jersey, and were appointed under the decree Code, § 6106. After the attachment had been dissolving the corporation, made by the Court levied, the receiver of the iron company, ap- of Chancery in the latter state, and were conpointed by an Ohio court, filed a bill in Mem-firmed by an act of the Legislature of the former. The defendant's counsel denies the capaciphis to recover the said assets, which had ty of receivers, appointed in other states and been attached. This bill was dismissed by counties, to sue in the courts of this state. The the court. laws and proceedings of other sovereignties have not, indeed, such absolute and inherent vigor as to be efficacious here under all circumstances. But in most instances they are recognized by the courtesy of the courts of this state; and the right of foreign assignees or receivers to collect, sue for, and recover the property of the individuals or corporations they represent, has never been denied, except where their claim came in conflict with the rights of creditors in cisions to which we have been referred on this this state. All that has been settled by the desubject is that our courts will not sustain the lien of foreign assignees or receivers, in opposition to a lien created by attachment under our own laws. In other words, we decline to extend our wonted courtesy so far as to work In Dillingham v. Insurance Co., therefore, it will be seen that the suit of the foreign receiver, had it been allowed, would have prejudiced the rights of a local creditor. In Motherwell, etc., Iron Co. v. Bank, the suit of the foreign receiver, had it been allowed, would have prejudiced the rights of a foreign creditor, upon whom our statute had conferred a standing equivalent to that possessed by a citizen of the state. In both these cases the foreign receivers sought to assert claims in opposition to liens been induced to give credit to the foreign corporation." Runk v. St. John, 29 Barb. (N. Y.) 585. In a note to Choctaw Coal, etc., Co. v. Williams, Echols, etc., Co., 75 Ark. 365, 87 S. W. 632, as reported in 5 Ann. Cas. 569, it is said: "While the courts have with unanimity denied the capacity of a receiver to bring suit in a foreign jurisdiction as a matter of right, the privilege or permission to sue is ordinarily accorded as a matter of comity, and in the absence of statutory regulations the appointment and title of the receiver will be recognized, and he will be allowed to sue, unless injustice or detriment will result therefrom to the citizens of the state permitting it, or the policy of its laws will thereby be contravened." Authorities are collected from 27 states in support of the annotator's proposition. See later note to the same effect under ly improvident course for Tennessee to deny recognition to the interstate comity and courtesy usually prevailing in such matters. Such a policy would provoke retaliation, and work to the detriment of our own citizens and business interests. For the reason stated, we are of opinion that the chancellor erroneously sustained the demurrer to complainant's bill, and the decree below will be reversed, and the case remanded for answer. Other questions made have been disposed of orally. The costs of this court will be paid by defendants. MAY v. ILLINOIS CENT. R. CO. et al. (Supreme Court of Tennessee. May 23, 1914.) PLEADING (8 18*)- ALLEGATION OF TIME PLEADING AND PROOF. Converse v. Hamilton, 224 U. S. 243, 32 Sup. Not only may plaintiff allege that the personal injury for which she sues was inflicted "on or about" a certain day, but, being unable to do so, she may not be required to allege the date with greater particularity, and may recover on her testimony that the accident occurred in the month alleged, and to the best of her recollection on the day alleged. er than that of their appointment is almost universally conceded to receivers now, as a matter of comity or courtesy, unless such a suit is inimical to the interest of local creditors, or to the interest of those who have acquired rights under a local statute, or unless such a suit is in contravention of the policy of the forum. No such objection can be urged to the maintenance of the present suit, and we are of opinion it should be allowed to be prosecuted. In Cagill v. Wooldridge, 8 Baxt. 580, 35 Am. Rep. 716, we permitted a receiver appointed by an Arkansas court to prosecute in this state an action of replevin to recover property taken from his possession. In Newsum v. Hoffman, 124 Tenn. 369, 137 S. W. 490, speaking of chattel mortgages executed and registered in other states, this court held that they would be recognized as valid and effective here, if the mortgaged property was brought into the state without the consent of the mortgagee. The court said: "It seems a churlish and ungracious course, if not an example of improvident judgment, to hold out against the generous comity of the many states which recognize the rule of interstate courtesy upon this subject." [Ed. Note.-For other cases, see Pleading, Certiorari to Court of Civil Appeals. Action by Rosa May against the Illinois Central Railroad Company and another. Judgment for defendants was reversed, and the cause remanded for new trial, by the Court of Civil Appeals, and defendants bring certiorari. Affirmed. Lindsay B. Phillips, of Memphis, for plaintiff. A. W. Biggs, T. A. Evans, and C. N. Burch, all of Memphis, for defendants. NEIL, C. J. This action was brought in the circuit court of Shelby county to recover damages for an injury alleged to have been inflicted upon the plaintiff by the defendant railway company. The declaration alleged that "on or about the 12th day of September, 1912," plaintiff, while walking on defendant's track at a place which, for many years prior thereto, the public had been in the habit of using as a walkway, near the intersection of the said track and Iowa avenue, was negligently run upon by one of defendant's engines, after her danger became apparent to the defendant's servants, or by the exercise of ordinary care would have been apparent to them. It appears inferentially from an amendment made that a motion was entered by defendant to require the plaintiff to make her declaration more specific, but the order itself is not in the record. Thereupon the plaintiff filed the following amendment: This observation applies with even more force to the case of a foreign receiver who seeks to bring an action in our courts under circumstances such as are here existing. We have in Tennessee several border cities, Memphis, Chattanooga, Bristol, Clarksville, and others, the trade and business of which "Comes now the plaintiff in compliance with are largely, if not chiefly, in border states. the order of the court heretofore granted hereThese cities are in the main creditor cities, in, and amends her original declaration by inserting in the second paragraph, page 1 thereof, and it would therefore, as the court said in immediately after the words and figures that Newsum v. Hoffman, supra, be an exceeding-heretofore, to wit, on or about the 12th day |