The opinion
On Rehearing.
[7] Keeping in mind that this complaint charges a special act of negligence, in that the defendants permitted the dog to run at large, let us consider the tendencies of the evidence:
It is perfectly clear that all of the defend *374 ants were in possession of sufficient facts to put them on notice that the dog had been bitten by a dog that was mad, and would probably develop rabies. Inueed, this fact so impressed defendants that the dog in this case, though small and a household pet, was confined in a stall and kept' there for some time. It is also apparent that the dog was turned out of the stall and permitted to run at large at a time when to do so was a menace to the public. This is shown by the result. Under the facts and circumstances, it was' a question for the jury to say whether the act of turning out the dog was negligence. But these defendants say that, even if there was negligence, they did not participate in it, and are not responsible for it, because the turning out of the dog was the act of Newton Brown, one of the original defendants, who is now dead, and as to whom the suit was abated. On this point it appears that these defendants are husband and wife, that Newton Brown was an adopted son, that they were all living together as one family, that the dog was a small fice, and a household pet, that the title to the dog was claimed by the wife, that they were all three down at the stall looking at the dog, and talking about it, at the time Newton Brown turned it out, that Newton-said there, in the presence and hearing of all of them, that he was going to turn it out, and although the husband, who controlled the household, and the wife, who claimed to own the dog, said nothing, the jury could conclude that they were present and impliedly consenting to the act.
We see no reason for changing the conclusions heretofore reached, and the application for rehearing is denied.
Application for rehearing denied.