In Pettus v. Weyel, 225 S.W. 191 (Tex. Civ. App. – San Antonio 1920, writ ref’d), Plaintiff brought suit in his individual capacity and as next friend of his minor daughter against defendant, alleging negligence and negligence per se when defendant’s dog bit the minor plaintiff. The jury awarded plaintiff $150 and the minor plaintiff $750. Defendant appealed. On appeal the court reversed the portion of the judgment with respect to the plaintiff and affirmed judgment for the minor plaintiff.
This is another dog at large case. The evidence showed the dog had been sick for several days before the bite. The defendant’s son knew the dog was ill; the defendant’s wife did not. The nature of the illness, at the time, was unknown. There was no evidence the dog was vicious prior to the illness. The court made an interesting comment. It stated that “knowledge on the part of the wife would charge the husband with responsibility. Whether this would be true with respect to knowledge on the part of the minor son may well be doubted.” Id. at 192.
The dog was not confined by the defendant, and at some point ran at large. On the day preceding the one on which the dog bit a minor plaintiff, it bit another child. There was no evidence the defendant knew of the prior bite.
On appeal, the court held the evidence insufficient to support the finding of common-law negligence, stating:
No proof was adduced concerning the symptoms of the illness so that a jury could conclude that those in charge of the dog, in the exercise of ordinary care, would have confined the dog, on the theory that he might be afflicted with rabies. No proof was adduced that the dog had been a vicious dog when well, or that during his illness he manifested any signs of viciousness, until he bit the child of witness Bihl, which was on the day preceding the one on which he bit Catherine Weyel. There is no evidence that the biting of the Bihl child was communicated to those in charge of the dog until after Catherine Weyel had been bitten. The evidence therefore discloses a case in which knowledge such as would call for restraint of the dog must be inferred solely from the fact that the dog was suffering from some ailment for which the son was feeding it dog biscuits. If the jury is warranted in inferring want of due care from that circumstance, it may be stated as a rule of law that any person who owns a dog which is ill, however slight the illness, is guilty of negligence at common law in not confining the dog, and will be answerable in damages for any injury the dog may inflict. Proof that the dog developed rabies does not warrant an inference that those in charge of the dog were negligent in viewing his illness as ordinary, there being no proof to show that there was anything extraordinary about the symptoms. Id. at 192
On the issue of negligence per se, the ordinance provided:
Provided, that it shall be unlawful for any dog to be at large upon the streets, alleys or public grounds of said city unless the same shall be at all times under the control of its master or its master’s servant or agent, by means of a chain, rope or cord of sufficient strength to control the actions of said dog, or such other personal presence and attention as will reasonably control its actions and conduct. Id. at 192.
Defendant attacked the validity of the ordinance, claiming it was “uncertain and not intelligible, and the meaning thereof not clear, and the crime attempted to be defined is not certain.” Id. at 193.
The court concluded the ordinance was valid, sustained the damage award for the minor plaintiff and reversed the judgment in so far as it awarded damages to the adult plaintiff individually.