[Strouse v. Leipf.]

cape from the premises, is not the inquiry. The keeper must at his peril safely keep such animal. Such is the condition on which the ownership or custody of known vicious animals is tolerated. Ownership or custody of such vicious animal is not one of the natural, inherent rights of property. It is a qualified, or restricted right. Qualified by the condition that the animal can be and is safely confined and kept.-Cooley on Torts, 343 et seq. 1 Addison on Torts, § 261; Whittaker's Smith on Neg., 99; 2 Shearman & Redf. on Neg., § 628, 631; The Lord Derby, 17 Fed. Rep. 265; 1 Amer. & Eng. Encyc. of Law, 581; Garlick v. Dorsey, 48 Ala. 222; Nolan v. Traber, 49 Md. 460.

Previous knowledge of the animal's vicious habits must be alleged and proved; but positive proof is not always necessary. It may be inferred from circumstances. But the knowledge of the vicious habits of an animal need not refer to circumstances of exactly the same kind. All that the law requires to make the owner or keeper liable is knowledge of facts from which he can infer that the animal is likely to commit an act of the kind complained of.-1 Amer. & Eng. Encyc. of Law, 582 and

note.

The pivotal question in this case is, whether Mrs. Strouse, the wife of Simon Strouse, living in the same house and in marital relations with him, can, under the facts of this case, be adjudged guilty of the tort complained of. Let us first ascertain precisely what was done which led to the plaintiff's alleged injury, or sheds light on the circumstances attending it. We premise that what is here stated is proved by all the testimony bearing on the question or questions, without a shade or semblance of conflict. The house and premises in which Mr. and Mrs. Strouse lived together as husband and wife was the property of Mrs. Estra Strouse, the defendant in this suit. They lived there as husband and wife, having their children around them, and had lived at the same place for many years. A dog had for years been on the premises, not otherwise confined than by the inclosure of the lot. In the day time, when neither Mrs. Strouse nor her husband was at home, the dog escaped through the back gate of the lot, and inflicted the injury complained of in an open, public alley-way which extended across from street to street at the rear of the

[Strouse v. Leipf.]

premises. No special act of negligence-in fact, no direct agency-is charged either againt Simon or Estra Strouse, in immediate connection with the escape of the dog at the time it took place. The immediate cause, according to the testimony, was the act of a visiting stranger. But, as we have shown above, negligence in permitting the dog to escape from the inclosure was not essential to the maintenance of this action, The fault and liability for the injury which ensues are established, according to legal requirements, when it is shown that a vicious animal, prone, and known to be prone, to inflict personal injuries, is kept, and such animal escapes from confinement and inflicts injury. This constitutes an actionable tort, perpetrated by the keeper of such animal. That there was testimony tending to prove the vicious, if not dangerous nature and temper of the dog, and tending to charge his keeper with a knowledge of such his evil disposititon, can not be gainsaid. A verdict, finding such to be the fact, could not be set aside as unsupported by testimony.

The testimony as to the ownership, custody or keep of the dog was as follows: Plaintiff testified: "It was Mrs. Strouse's dog. She would go to the butcher wagon and ask for meat for the dog. She got the dog from Mr. Hayes, who is now dead. I heard Mrs. Strouse say that Mr. Hayes gave her the dog when it was a small puppy. Mr. Strouse's cook fed the dog. I do not know who took care of him." This was the entire testimony for plaintiff on this question. For defendant, Strouse and his wife testified that Hayes or Haas gave the puppy to Mr. Strouse, that he had always owned him, and gave directions as to his being fed. Their two children and the cook confirmed them in this testimony. It is not our intention to compare the relative weight of this conflicting testimony.

The authorities are uniform that the husband is the head of the family, so long as the marital relation is maintained. He determines where the home shall be, is entitled to the wife's labor and services, has the right to have her society, controls the home and the household, and, with limited exceptions, she must obey his commands. In domestic management she is not presumed to have an independent will of her own. And our statutes, securing to married women their separate estates, have

[Strouse v. Leipf.]

wrought no change in these relative rights and duties that affects the questions presented in this case. In Hanberry v. Hanberry, 29 Ala. 719, it was said: "It is settled law that the domicil of the wife follows that of the husband." In Firebrace v. Firebrace, Law Rep. 4 Prob. Div. 63, 67, it is said: "The domicil of the wife is that of the husband." This was said in 1878, after the enactment of the married woman's act in England. In the matter of Cochrane, 8 Dowl. Prac. Rep. 630, 635, Coleridge, J., replying to the contention "that the wife, as to her residence and manner of passing her time, was independent of her husband," said: "But our law has not so limited his rights, nor rested them on so narrow a foundation. Although expressed in terms simple almost to rudeness, the principle on which it proceeds is broad and comprehensive. It has respect to the terms of the marriage contract, and the infirmity of the sex. For the happiness and honor of both parties it places the wife under the guardianship of the husband, and entitles him, for the sake of both, to protect her from the danger of unrestrained intercourse with the world, by enforcing cohabitation and a common residence." In the same opinion he quoted Lord Mansfield as saying, "The husband has, in consequence of his marriage, a right to the custody of his wife, and whoever detains her from him violates that right, and he has a right to seize her wherever he finds her."

In Ashbaugh v. Ashbaugh, 17 Ill. 476, the court said: "In contemplation of law the husband and wife are one person, and her residence follows that of the husband.” This principle was re-affirmed in Davis v. Davis, 30 Ill. · 180, and in Kennedy v. Kennedy, 87 Ill. 250. In Elijah v. Taylor, 37 Ill. 247-a case controlled by their statute securing to married women the ownership of their property-the court employed this language : "We desire to proceed cautiously in the construction of that act, because although passed without much consideration, it involves interests of great magnitude, and questions of no little difficulty. All that we deem it necessary to say, in regard to the case before us, is this: that where the husband, as the head of the family, occupies and cultivates the land of the wife, he must be considered as occupying it with her consent, for the common benefit of the family; and the products of his toil upon such land, are as much

[Strouse v. Leipf.]

his property, notwithstanding the act of 1861, as if he had occupied, as a tenant, land rented from some third person. Any other rule would plainly lead to great confusion, and open a wide door to fraud."

In Boyce v. Boyce, 23 N. J. Eq. 337, 348, the principle is thus expressed: "The wife is bound to follow her husband when he changes his residence, even without her consent, provided the change is made by him in the bona fide exercise of his power, as head of the family, of determining what is the best for it."

In California the rights of the wife to the ownership and control of her property were never framed after the common law model. They partook more of the civil law system. In Hardenbergh v. Hardenbergh, 14 Cal. 654, is this language: "The husband, being the head of the family, and bound for its support and maintenance, may change the matrimonial domicil at pleasure, and it is the duty of the wife to submit to the reasonable exercise of this right.''

The case of Glover v. Alcott, 11 Mich. 470, arose after the enactment of their statute securing to married women the ownership and control of their property. The wife had permitted the husband to conduct a large business, styling himself "W. W. Alcott, agent." Indebtedness was incurred in the conduct of the business, and some barrels of flour, the product of the enterprise, were seized and sold in payment thereof. The wife brought an action of trover for their conversion. In discussing the question of her right to maintain the action, the court, Christiancy, J., said: "We see nothing in the statute to satisfy us that the legislature contemplated so radical a change in the legal relations of husband and wife, while they continue to live together, and he is competent to the transaction of business, and guilty of no gross neglect of his duties to her and his family. But the husband must, as a general rule, still be regarded as the head of the family, and as the only one of the two authorized to carry on such general trade and business."

In Massachusetts, they have legislation somewhat analogous to ours, relating to the rights of married women in their separate property. In Com. v. Wood, 97 Mass. 225, the husband was indicted for keeping a house of ill fame. The house was the separate property of the wife. The defense relied on and ruled upon is shown in

[Strouse v. Leipf.]

the following extract from the opinion of the court: "The defendant contends that he is not liable, because the house was owned by his wife as her separate property, and the business of keeping a house of ill fame therein, which was resorted to for prostitution and lewdness, was carried on by her, and she took the profits thereof, and he did not participate in them. Whether

he is liable in such a case must depend upon the relations which he sustains to the household, while he lived with his wife as her husband.

"The doctrine of the common law is, that by marriage the husband and wife become one person in law; that she is under his protection, influence, power and authority, and that he is the head of the household. This condition of the wife is designated by the expressive term coverture. One effect of it is, as a genernal rule, though subject to many exceptions, to excuse her from punishment for many crimes committed by her in the presence of her husband, on the ground that she acted under his compulsion. He alone is held responsible for such crimes. [Citing many authorities.] How far he may exercise force in restraining her is not precisely settled. But there can be no doubt that he may exercise as much power as may be reasonably necessary to prevent her as well as other inmates of the house from making it a brothel. It is said in Dalton's Justice, that he is liable if she keep an ale-house without license against his will.

"But it is contended that the recent legislation of this Commonwealth has made married women so far independent of their husbands as to release the defendant, in such a case as the present, from all responsibility for the conduct of his wife. It is true, that the house they lived in appears to have been owned by her to her sole and separate use, free from the control of her husband. But ever since the law of equitable trusts existed, married women have been able to hold property thus independently of the husband's control; and the fact that the family lived in a house they owned has never been regarded as affecting the rights and power of the husband, as head of the family. * * * *These provisions of the statute relate to legitimate business, and not to the keeping of brothels. They do not take away his power to regulate his household, so far as to prevent his wife from committing this offense, or relieve him from responsibility