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(220 Ky. 566, 295 S. W. 855.)

sured, carrying separate policies on two rooms of the same building, can only recover from each company its proportionate share of the loss to the partition wall, where said wall was totally damaged, but the rooms only partially destroyed by fire.

Sun Ins. Office v. Varble, 103 Ky. 758, 41 L.R.A. 792, 46 S. W. 486; Monteleone v. Royal Ins. Co. 47 La. Ann. 1563, 56 L.R.A. 784, 18 So. 472.

Mr. Rayburn Withers for appellee. McCandless, J., delivered the opinion of the court:

John G. Jenkins owned two adjoining storerooms separated by a single wall. For convenience these may be designated No. 1 and No. 2, respectively. No. 1 was insured for $1,800 in the Central States Fire Insurance Company, and No. 2 for $2,500 in the Continental Insurance Company. All of No. 2 was destroyed by a fire, which damaged No. 1, aside from the division wall, to the extent of $345.51; it being shown that it will require $970.51 to replace the division wall. Jenkins recovered judgment against the Continental Insurance Company for the full amount of its policy, $2,500, and it does not appear whether that judgment was paid or an appeal taken therefrom.

In this suit against the Central States Fire Insurance Company, he sought the full amount set out supra, $1,316.02. The company denied liability for more than eighteen forty-thirds of the cost of replacing the wall in question, to wit, $402.26, together with the remainder of room No. 1, $345.51, or a total of $757.77. The case was submitted to the court on agreed stipulation of fact and judgment was rendered for the full amount of Jenkins' claim. The insurance company appeals.

Each of the insurance policies contains the following provision: "This company shall not be liable under this policy for a greater proportion of any loss on the described property or for a loss by the expense of removal from the premises endangered by fire than the amount hereby insured shall bear to the whole

insurance whether valid or invalid, or by solvent or insolvent insurers covering such property, and the extent of the application of the insurance under this policy and of the contribution to be made by this company in case of loss, may be provided for by agreement or condition written hereon or attached or appended hereto."

This clause is valid and enforceable. Sun Ins. Office v. Varble, 103 Ky. 758, 41 L.R.A. 792, 46 S. W. 486. But appellee argues



that it does not ap- provision for
ply to this case for prorating-
the reason that
the property insured was in each in-
stance covered by a single policy;
that each store was a distinct entity
and insured as a whole without ref-
erence to its integral parts, and
therefore he can recover on each
policy for the entire damage to all
the property covered by it. We can-
not assent to this proposition. Its
effect is to pay appellee twice the
cost of replacing the center wall,
and thereby enables him to make a
profit on his insurance contract, in-
stead of receiving indemnity for his
loss, a result not in accordance with
the basic elements of insurance con-
tracts. It is true that each policy
covered a separate storeroom and
that no reference is made in either
policy to the division wall, and, if
but one storeroom had been insured,
there could be no doubt of appellee's
right to recover for the full dam-
age to this wall; but it does not fol-
low that he can duplicate this re-
covery from the insurance on the
other room. If he rebuilds one or
both stores, his loss is fully met in
the restoration of the wall. If he
does not rebuild either, he is fully
indemnified when he receives the full
amount of damages sustained by the
destruction of that wall.

In Monteleone v. Royal Ins. Co. 47 La. Ann. 1563, 56 L.R.A. 794, 18 So. 472, it was held that upon the destruction of a party wall one owner could recover the entire loss, on the idea that he was subrogated to the rights of the other owner, quot

ing 2 Woods on Fire Insurance, § 55. In Nelson v. Continental Ins. Co. 31 L.R.A. (N.S.) 598, 105 C. C. A. 215, 182 Fed. 783, it was held that the joint owner of a party wall might recover for his one-half of the value of the wall and for the injury to his easement in the other onehalf, notwithstanding the policy limited recovery to one who had sole and unconditional ownership.

In Citizens' F. Ins. Co. v. Lockridge, 132 Ky. 1, 20 L.R.A. (N.S.) 226, 116 S. W. 303, it was held that the owner of a one-half interest in a party wall can recover full value upon its destruction. It is also intimated that an adjoining owner might also recover its full value, if similarly insured. Appellee relies upon that case as authority in this. Perhaps it was unnecessary in that case for the court to indicate the

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Provision for prorating as applicable where buildings owned by the same person having a wall in common are covered by different policies.

[Insurance, § 785.]

The reported case (CENTRAL STATES F. INS. Co. v. JENKINS, ante, 86), which holds that provisions in an insurance policy for prorating apply where two buildings owned by the same person (insured), having a division wall in common, are covered by different policies, and consequently that recovery under one policy on account of damage to the wall is limited to such proportion of that damage as the insurance under that policy bears to the entire insurance on both buildings, seems to be the only case that has passed upon the question.

As pointed out in the opinion, the question under annotation is to be distinguished from that involved in Citi

zens' F. Ins. Co. v. Lockridge (1909) 132 Ky. 1, 20 L.R.A. (N.S.) 226, 116 S. E. 303, holding that the owner of a building supported by a party wall owned in common by him and the owner of the adjoining block, which is injured by the burning of the adjoining building, may recover, under the insurance policy on his building, diminution in its value because of the injuries to the party wall, which may include the full value of the wall. The court in the JENKINS CASE refuses to extend the doctrine of that case so as to give a single owner double damages on account of the damage to the wall. R. L. M.

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Animals, § 18- straying cat - killing fowls - liability.

1. The owner of a cat is not bound to keep it from straying on to his neighbor's land, and is not liable for its act in killing fowls and pigeons kept there.

[See annotation on this question beginning on page 92.]

Animals, § 21 feræ naturæ lia

bility of keeper.

2. A person who keeps an animal feræ naturæ keeps it at his peril, and if he loses control of it, and it does damage, he is responsible.

[See 1 R. C. L. 1086; 1 R. C. L. Supp. 326; 6 R. C. L. Supp. 57. See also annotation in 39 A.L.R. 360.]

Animals, § 18 domestic animal liability for damage by.

3. One who keeps a domestic animal is not rendered liable by the mere fact that the animal does damage in following the natural propensity of its kind to do damage in certain circumstances, unless the animal is one for whose trespasses the owner is liable.

[See 1 R. C. L. Supp. 328. See also annotation in 33 A.L.R. 796.]

APPEAL from the judgment of a Divisional Court on an appeal from the County Court of Yorkshire holden at Leeds.

The plaintiff, who lived at 190 Lower Wortley road, Leeds, brought an action in the county court against the defendant, who lived at No. 151 in the same road. The plaintiff was a pigeon fancier. He also kept poultry. He claimed £8 for the loss of thirteen pigeons and two bantams killed by the defendant's cat. The defendant did not deny that his cat had killed the birds. He contended that he was not in law liable for what the cat did in following the ordinary instinct of its kind. There was no evidence of any vice in the cat other than the habit common to all cats of straying and killing birds.

The county court judge held that the owner of a cat is not bound to keep it from killing pigeons in a cote or chickens in a chicken run, but that it was for the owner of the birds to keep them from becoming a prey to prowling cats. If he should be wrong in this opinion, and if a cat was to be included among domestic animals such as horses and dogs, he held that, as the defendant had no knowledge of any vicious

propensity of his cat beyond the ordinary instinct of all cats, he was not liable. He therefore gave judgment for the defendant.

On appeal the divisional court (Shearman and Sankey, JJ.) held that a cat was clearly one of the class of animals domitæ or mansuetæ naturæ, and not of the class of animals feræ naturæ; that there was no authority for recognizing a third class of animals partly mansuetæ naturæ and partly feræ naturæ; and that, as there was no evidence that the defendant knew of any particular vice in the cat, or that the animal had any particular vice, beyond the common habits of all cats, the defendant was not to be treated as the owner of a domestic animal having a vicious propensity known to its owner. With regard to the defendant's alleged liability for trespass to land and its consequences, the court held that the owner of a cat, like the owner of a dog, was not bound to keep the animal from straying. They therefore dismissed the appeal.

The plaintiff's application for leave to appeal was refused. He afterwards obtained leave from this court on condition of paying the costs incurred by both sides on the appeal to this court and on any further appeal to the House of Lords.

Joy, K. C., G. Russell Vick, and Sutcliffe, for the appellant:

There is no authority for holding that the owner of a cat is not liable for its trespass. It is a general principle that the owner of an animal, which is the subject of property, is responsible for its trespasses. One exception to this rule has been recognized. A dog may trespass without rendering its owner liable.

Mason v. Keeling, 1 Ld. Raym. 606, 91 Eng. Reprint, 1305, 12 Mod. 332, 88 Eng. Reprint, 1359; Beckwith v. Shordike, 4 Burr. 2092, 98 Eng. Reprint, 91; Cox v. Burbidge, 13 C. B. N. S. 430, 143 Eng. Reprint, 171; Read v. Edwards, 17 C. B. N. S. 245, 144 Eng. Reprint, 99; Sanders v. Teape, 51 L. T. N. S. 263.

But except for an obiter dictum by Wiles, J., in Read v. Edwards, 17 C. B. N. S. 245, 144 Eng. Reprint, 99, there is no authority for holding that a cat is another exception to the general rule. But even a dog may inculpate its master if to his knowledge it has a vicious propensity; for instance, if the owner knows that his dog is ferocious, he will be liable if it trespasses and bites another person; or if he knows that the dog has a tendency to kill young pheasants, he will be liable. if the dog trespasses and does this. Read v. Edwards, supra.

And if a cat is like a dog in being an exception to the general rule, its owner also will be liable if he knows of a particular tendency in the cat to do mischief.

The divisional court held that the owner of the cat was not liable because there was no evidence that he knew of any particular vice in the cat. But no evidence was necessary, because it is common knowledge that cats will kill pigeons or any other birds they can. This distinguishes the present case from Manton Brocklebank [1923] 2 K. B. 212-C. A. There an agister, who put a horse into a field with a mare, was held not liable for injury done by the mare to the horse because, although it was not contrary to experience that a mare should bite or kick a horse, this was


not so common a tendency as that the court would take judicial notice of it. If it had been common knowledge, like the tendency of a cat to kill pigeons, the decision would have been the other way.

Clinton v. J. Lyons & Co. [1912] 3 K. B. 198-Div. Ct.; Bradley v. Wallaces [1913] 3 K. B. 629—C. A.; and Heath's Garage v. Hodges [1916] 2 K. B. 370— C. A., were also cited.

Sandlands for the respondent was not called on.

Bankes, L. J.:

We gave leave to appeal in this case, not because we thought there was any real doubt about the law, but because the question was one of general importance and one upon which further argument and a decision of this court would be to the public advantage. The case has now been further and very fully argued, with the result that I am clearly of opinion that the judgment of the divisional court was right. I do not propose to trace the development of the common law relating to the liability of individuals for damage done by animals belonging to them, because most of the authorities were lately cited to and considered by this court in Manton v. Brocklebank [1923] 2 K. B. 212— C. A., and the position will be better understood by the parties interested if I state my view without reference to decided cases.

The responsibility of the owners of animals for damage done by them has developed along two main lines, one a branch of the law of trespass, and the other a branch of the law which imposes upon the owner of a dangerous animal or thing a duty to take measures to prevent it from doing damage. With respect to this second branch there are two classes of animals. of animals. The first includes animals feræ naturæ, for example a tiger or a gorilla, which are obviously of a dangerous nature, although individuals may be more or less tamed. A person Animals-feræ who keeps an ani- nature-liamal of this class bility of keeper. keeps it at his peril. If he loses control of it and it does damage he is

([1926] 2 K. B. 125.)

responsible. The second class includes dogs, cows, and horses, which are not naturally dangerous to mankind. Of this class individuals may develop dangerous propensities, but unless and until they do so they are not treated as belonging to the class

-domestic animal-liability

of animals which the owner keeps at for damage by. his peril; and, leaving trespass aside for the present, the owner is not responsible for damage which these animals may do when not trespassing. An individual of this class, however, may cease to be one for whose damage its owner is not responsible, if it has given him indications of a vicious or dangerous disposition. When the animal has been found by its owner to possess such a nature it passes into the class of animals which the owner keeps at his peril.

I come now to the other branch, the responsibility for trespass. Generally speaking the owner of an animal is responsible if it trespasses; but the common law in its common sense admits of exceptions to this general rule, and among the exceptions is the dog. The reason for this exception has been stated in various ways at different times. I adopt the reason given by Willes, J., in Cox v. Burbidge, 13 C. B. N. S. 430, 440, 143 Eng. Reprint, 171: "I can quite understand a distinction being drawn between animals which from their natural tendency to stray, and thereby to do real damage, require to be and usually are restrained, and a dog, which is not usually kept confined; and there may be good reason besides 'de minimis non curat lex' why an action should not lie against a man whose dog without the will of its master enters another's land, though it is different in the case of a horse or an ox." To expand that, we can easily see why the law should hold the owner of a horse or an ox responsible for trespass; any trespass by those animals must cause some damage, even when the animal is merely wandering about and eating what attracts it. Trespass by a dog is very different; a dog fol

lowing its natural propensity to stray is not likely to do substantial damage in ordinary circumstances, although it might do so by rushing about in a carefully tended garden; but those who administered the law in the course of its development had regard not to exceptional instances but to the ordinary experience of a dog's habits, and they also took into account that the dog, a useful domestic animal, must be used if at all according to its nature; that it cannot ordinarily be kept shut up, and that the general interest of the country demands that dogs should be kept and that a reasonable amount of liberty should be allowed them. them. Therefore dogs are placed by the common law in a class of animals which do not by their trespasses render their owners liable. I can see no possible distinction between a dog and a cat. Attention was called to the natural propensity of a cat to pursue pigeons. That point might be material if the question was whether a cat was to be placed in the class of dangerous animals; but it was most properly admitted by Mr. Joy that the test to be applied in solving that question is danger to mankind. Upon the question whether the owner of a cat is responsible for its trespass, the natural propensity of cats to pursue and devour birds has, in my opinion, no bearing. A dog is not excluded from the excepted class by the fact that some young dogs will chase sheep, and it is impossible to hold the owner of a cat responsible for


its trespass which -straying catresults in damage killing fowlsto his neighbor's pigeons or poultry. The appeal must be dismissed.

Warrington, L. J.:

I am of the same opinion, and have nothing to add.

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