In Badali v. Smith, 37 S.W. 642 (Tex. Civ. App. – Dallas 1896, no writ), the court reversed a judgment entered by the county court in favor of plaintiff, where plaintiff’s minor son was bitten when he stuck his hand through a fence.
Plaintiff’s son was at the back of defendant’s store. The dog was in a fenced yard connected with the store. Plaintiff alleged the dog stuck his head through a crack in the fence and caught the boy’s hand. Defendant alleged the dog was confined within a closed fence and that the boy put his hand inside of the enclosure.
The case was originally tried in justice court and resulted in a judgment in favor of the plaintiff. Defendant appealed. The case was tried again in County Court and resulted in a judgment in favor of the plaintiff. Defendant appealed.
On appeal, the defendant complained of the charge of the court, which read: “If you believe from the evidence that Bennett Smith, plaintiff’s son, was gathering snow from the inside of defendant’s premises at the time the dog bit him, you will find for the defendant, unless you further find that the dog was vicious or ferocious, and the defendant kept him, knowing his disposition, in which latter case you will find for the plaintiff.” Id. at 642.
In remanding the case, the court stated: “If the dog was placed within a safe enclosure, and not permitted to run at large, and the boy was bitten through his own fault, and not through any carelessness of the defendant, the defendant would not be liable for the injuries sustained.” Id. at 642. The case has been cited for the proposition that a defendant is “not bound to make it impossible for strangers to be injured by the dog, in spite of their trespasses.” Ft. Worth & R. G. Ry. Co. v. Brown, 173 S.W. 943, 946 (Tex. Civ. App. – Fort Worth 1914, no writ). The jury in the case at hand found the dog to be vicious or ferocious. Since Marshall v. Ranne, 511 S.W.2d 255 (Tex. 1974), the proper standard to be applied is one of strict liability.