Section II. Injuries by Animals

MAY v. BURDETT In the Queen’s Bench, June 2, 1846. Reported in 9 Queen’s Bench Reports (Adolphus & Ellis, N. S.), 101.

Case. The declaration stated that defendant, “before and at the time of the damage and injury hereinafter mentioned to the said Sophia, the wife of the said Stephen May, wrongfully, and injuriously kept a certain monkey, he the defendant well knowing that the said monkey was of a mischievous and ferocious nature, and was used and accustomed to attack and bite mankind, and that it was dangerous and improper to allow the monkey to be at large and unconfined; which said monkey, whilst the said defendant kept the same as aforesaid, heretofore and before the commencement of this suit, to wit, on the 2d of September, 1844, did attack, bite, wound, lacerate, and injure the said Sophia, then and still being the wife of said Stephen May, whereby the said Sophia became and was greatly terrified and alarmed, and became and was sick, sore, lame, and disordered, and so remained and continued for a long time, to wit, from the day and year last aforesaid to the time of the commencement of this suit; whereby, and in consequence of the alarm and fright occasioned by the said monkey so attacking, biting, wounding, lacerating, and injuring her as aforesaid, the said Sophia has been greatly injured in her health,” &c.

Plea, not guilty. Issue thereon.

On the trial, before Wightman, J., at the sittings in Middlesex, after Hilary term, 1845, a verdict was found for the plaintiff with £50 damages. Cockburn, in the ensuing term, obtained a rule to show cause why judgment should not be arrested.

[The cause was argued] before Lord Denman, C. J., Patteson, J., Coleridge, J., and Wightman, J.

Lord Denman, C. J., now delivered the judgment of the Court.

This was a motion to arrest the judgment in an action on the case for keeping a monkey which the defendant knew to be accustomed to bite people, and which bit the female plaintiff. The declaration stated that the defendant wrongfully kept a monkey, well knowing that it was of a mischievous and ferocious nature and used and accustomed to attack and bite mankind, and that it was dangerous to allow it to be at large; and that the monkey, whilst the defendant kept the same as aforesaid, did attack, bite, and injure the female plaintiff, whereby, &c.

It was objected on the part of the defendant that the declaration was bad for not alleging negligence or some default of the defendant in not properly or securely keeping the animal; and it was said that, consistently with this declaration, the monkey might have been kept with due and proper caution, and that the injury might have been entirely occasioned by the carelessness and want of caution of the plaintiff herself.

A great many cases and precedents were cited upon the argument; and the conclusion to be drawn from them appears to us to be that the declaration is good upon the face of it; and that whoever keeps an animal accustomed to attack and bite mankind, with knowledge that it is so accustomed, is prima facie liable in an action on the case at the suit of any person attacked and injured by the animal, without any averment of negligence or default in the securing or taking care of it. The gist of the action is the keeping the animal after knowledge of its mischievous propensities.

The precedents, both ancient and modern, with scarcely an exception, merely state the ferocity of the animal and the knowledge of the defendant, without any allegation of negligence or want of care. A great many were referred to upon the argument, commencing with the Register and ending with Thomas v. Morgan, 2 C. M. & R. 496; S. C. 5 Tyr. 1085; and all in the same form, or nearly so. In the Register, 110, 111, two precedents of writs are given, one for keeping a dog accustomed to bite sheep, and the other for keeping a boar accustomed to attack and wound other animals. The cause of action, as stated in both these precedents, is the propensity of the animals, the knowledge of the defendant, and the injury to the plaintiff; but there is no allegation of negligence or want of care. In the case of Mason v. Kneeling, reported in 1 Ld. Ray. and 12 Mod., and much relied upon on the part of the defendant, want of due care was alleged, but the scienter was omitted; and the question was, not whether the declaration would be good without the allegation of want of care, but whether it was good without the allegation of knowledge, which it was held that it was not. No case was cited in which it had been decided that a declaration stating the ferocity of the animal and the knowledge of the defendant was bad for not averring negligence also; but various dicta in the books were cited to show that this is an action founded on negligence, and therefore not maintainable unless some negligence or want of care is alleged.

In Comyns’ Digest, tit. Action upon the Case for Negligence (A 5), it is said that “an action upon the case lies for a neglect in taking care of his cattle, dog, &c.;” and passages were cited from the older authorities, and also from some cases at nisi prius, in which expressions were used showing that, if persons suffered animals to go at large, knowing them to be disposed to do mischief, they were liable in case any mischief actually was done; and it was attempted to be inferred from this that the liability only attached in case they were suffered to go at large or to be otherwise ill secured. But the conclusion to be drawn from an examination of all the authorities appears to us to be this: that a person keeping a mischievous animal with knowledge of its propensities is bound to keep it secure at his peril, and that if it does mischief, negligence is presumed, without express averment. The precedents as well as the authorities fully warrant this conclusion. The negligence is in keeping such an animal after notice. The case of Smith v. Pelah, 2 Stra. 1264, and a passage in 1 Hale’s Pleas of the Crown, 430, put the liability on the true ground. It may be that if the injury was solely occasioned by the wilfulness of the plaintiff after warning, that may be a ground of defence, by plea in confession and avoidance; but it is unnecessary to give any opinion as to this; for we think that the declaration is good upon the face of it, and shows a prima facie liability in the defendant.

It was said, indeed, further, on the part of the defendant, that, the monkey being an animal ferae naturae, he would not be answerable for injuries committed by it if it escaped and went at large without any default on the part of the defendant, during the time it had so escaped and was at large, because at that time it would not be in his keeping nor under his control; but we cannot allow any weight to this objection; for, in the first place, there is no statement in the declaration that the monkey had escaped, and it is expressly averred that the injury occurred whilst the defendant kept it; we are besides of opinion, as already stated, that the defendant, if he would keep it, was bound to keep it secure at all events.

The rule therefore will be discharged.

Rule discharged.

FILBURN v. PEOPLE’S PALACE AND AQUARIUM COMPANY, LIMITED In the Court of Appeal, June 30, 1890. Reported in Law Reports, 25 Queen’s Bench Division, 258.

Appeal from a judgment of Day, J.

The action was brought to recover damages for injuries sustained by the plaintiff by his being attacked by an elephant, which was the property of the defendants, and was being exhibited by them. The learned judge left three questions to the jury: whether the elephant was an animal dangerous to man; whether the defendant knew the elephant to be dangerous, and whether the plaintiff brought the attack on himself. The jury answered all three questions in the negative. The learned judge entered judgment for the plaintiff for a sum agreed upon in case the plaintiff should be entitled to recover.

The defendants appealed.

Lockwood, Q. C., and Cyril Dodd, Q. C., in support of the appeal. There are certain animals recognized as being of an untamable nature, and these a person keeps at his peril. In Hale’s Pleas of the Crown (vol. i, p. 430), it is said: “Tho’ he have no particular notice that he did any such thing before, yet if it be a beast, that is ferae naturae, as a lion, a bear, a wolf, yea an ape or a monkey, if he get loose and do harm to any person, the owner is liable to an action for the damage.” There is, however, no hard and fast line which prevents an animal ferae naturae ceasing to belong to that class and becoming domesticated. The distinction is drawn in Rex v. Huggins, 2 Ld. Raym. 1574, where it is said: “There is a difference between beasts that are ferae naturae, as lions and tygers, which a man must always keep up at his peril; and beasts that are mansuetae naturae, and break through the tameness of their nature, such as oxen and horses. In the latter case an action lies, if the owner has had notice of the quality of the beast; in the former case an action lies without such notice.” All animals are wild by nature, and the reason for the distinction is, that some of them are treated as domesticated, because they have been tamed and are used in the service of man. Though there are wild elephants, just as there are wild oxen and horses, a great number have been tamed, and are used in the service of man; and the same ruling should apply to individuals of this class as to domesticated animals generally. The jury have negatived any knowledge on the part of the defendants of any dangerous character in this elephant, and they are, under these circumstances, entitled to the verdict.

Lord Esher, M. R. The only difficulty I feel in the decision of this case is whether it is possible to enunciate any formula under which this and similar cases may be classified. The law of England recognizes two distinct classes of animals; and as to one of those classes, it cannot be doubted that a person who keeps an animal belonging to that class must prevent it from doing injury, and it is immaterial whether he knows it to be dangerous or not. As to another class, the law assumes that animals belonging to it are not of a dangerous nature, and any one who keeps an animal of this kind is not liable for the damage it may do, unless he knew that it was dangerous. What, then, is the best way of dealing generally with these different cases? I suppose there can be no dispute that there are some animals that every one must recognize as not being dangerous on account of their nature. Whether they are ferae naturae so far as rights of property are concerned is not the question; they certainly are not so in the sense that they are dangerous. There is another set of animals that the law has recognized in England as not being of a dangerous nature, such as sheep, horses, oxen, dogs, and others that I will not attempt to enumerate. I take it this recognition has come about from the fact that years ago, and continuously to the present time, the progeny of these classes has been found by experience to be harmless, and so the law assumes the result of this experience to be correct without further proof. Unless an animal is brought within one of these two descriptions,—that is, unless it is shown to be either harmless by its very nature, or to belong to a class that has become so by what may be called cultivation,—it falls within the class of animals as to which the rule is, that a man who keeps one must take the responsibility of keeping it safe. It cannot possibly be said that an elephant comes within the class of animals known to be harmless by nature, or within that shown by experience to be harmless in this country, and consequently it falls within the class of animals that a man keeps at his peril, and which he must prevent from doing injury under any circumstances, unless the person to whom the injury is done brings it on himself. It was, therefore, immaterial in this case whether the particular animal was a dangerous one, or whether the defendants had any knowledge that it was so. The judgment entered was in these circumstances right, and the appeal must be dismissed.

Lindley, L. J. I am of the same opinion. The last case of this kind discussed was May v. Burdett, 9 Q. B. 101, but there the monkey which did the mischief was said to be accustomed to attack mankind, to the knowledge of the person who kept it. That does not decide this case. We have had no case cited to us, nor any evidence, to show that elephants in this country are not as a class dangerous; nor are they commonly known here to belong to the class of domesticated animals. Therefore a person who keeps one is liable, though he does not know that the particular one that he keeps is mischievous. Applying that principle to this case, it appears that the judgment for the plaintiff was right, and this appeal must be dismissed.

Bowen, L. J. I am of the same opinion. The broad principle that governs this case is that laid down in Fletcher v. Rylands, Law Rep. 1 Ex. 265; Law Rep. 3 H. L. 330, that a person who brings upon his land anything that would not naturally come upon it, and which is in itself dangerous, must take care that it is kept under proper control. The question of liability for damage done by mischievous animals is a branch of that law which has been applied in the same way from the times of Lord Holt and of Hale until now. People must not be wiser than the experience of mankind. If from the experience of mankind a particular class of animals is dangerous, though individuals may be tamed, a person who keeps one of the class takes the risk of any damage it may do. If, on the other hand, the animal kept belongs to a class which, according to the experience of mankind, is not dangerous, and not likely to do mischief, and if the class is dealt with by mankind on that footing, a person may safely keep such an animal, unless he knows that the particular animal that he keeps is likely to do mischief. It cannot be doubted that elephants as a class have not been reduced to a state of subjection; they still remain wild and untamed, though individuals are brought to a degree of tameness which amounts to domestication. A person, therefore, who keeps an elephant, does so at his own risk, and an action can be maintained for any injury done by it, although the owner had no knowledge of its mischievous propensities. I agree, therefore, that the appeal must be dismissed.

Appeal dismissed.

MAUNG KYAW DUN v. MA KYIN Before the Judicial Commissioner of Upper Burma, May 7, 1900. Reported in 2 Upper Burma Rulings (1897–1901), Civil, 570.

H. Thirkell White, Esq., Judicial Commissioner.

The plaintiff-appellant sued to recover damages on account of the death of his elephant “Do,” which died from the effect of wounds inflicted by the respondents’ elephant, “Kya Gyi.”

The issues which arise in a case of this kind have been stated in two cases of this court. In Maung Gyi v. Po To [same vol., p. 565] it was observed that the issue generally would no doubt be the usual issue as to the existence of negligence on the part of the owner of the animal doing the damage. In Maung Saw v. Maung Kyaw [same vol., p. 567], points which arise in a case very similar to the present were indicated. There has been some argument in this court on the application of the doctrine of scienter. It is said that “any one who keeps a wild animal, as a tiger or bear, which escapes and does damage, is liable without any proof of notice of the animal’s ferocity; but where the damage is done by a domestic animal, the plaintiff must show that the defendant knew the animal was accustomed to do mischief.” Collett on Torts, 7th edition, p. 100. Again, “a person keeping a mischievous animal with knowledge of its propensities is bound to keep it secure at his peril. If it escapes and does mischief, he is liable without proof of negligence, neither is proof required that he knew the animal to be mischievous, if it is of a notoriously fierce or mischievous species.” Pollock on Torts, 3d edition, p. 442. In Smith’s Leading Cases in the notes on Fletcher v. Rylands, 10th edition, vol. i, p. 827, it is said: “The law of England recognizes two distinct classes of animals. The first class consists of such animals as sheep, horses, oxen, and dogs, which the law assumes not to be of a dangerous nature, and a person who keeps an animal of this class is not liable for any damage it may do, when not trespassing, unless he knew that it was in fact dangerous. The other class consists of animals which have not been shown by experience to be harmless by nature; and one who keeps animals of this class must prevent them from doing injury under any circumstances, unless the person to whom it is done brings it on himself.” In the English case on which these remarks are based (Filburn v. People’s Palace Company), it was held that an elephant “did not belong to a class which, according to the experience of mankind, is not dangerous to man, and therefore the owner kept such an animal at his own risk, and his liability for damage done by it was not affected by his ignorance of its dangerous character.” Mew’s Digest of English Case Law, p. 199.

I understand the remarks of my learned predecessor in Maung Gyi v. Po To above cited to go no further than to suggest that a man should be liable for injury caused by his animal, whether tame or wild, if it is proved that the injury was due to the owner’s negligence. In that view, it would not be necessary to draw a distinction between wild and domestic animals. The point for decision would be whether the owner was guilty of negligence or whether he used such care as in the circumstances of the case was reasonable and ordinarily sufficient. The amount of care required would vary according to the class of the animal and according to its known disposition. It could not, I think, be laid down in this country that a man is liable for any damage done by his elephant without any proof of negligence or that he knew it to be of a vicious disposition. In view of the manner in, and extent to, which elephants are employed in this country such a proposition would be manifestly unjust.

In the present case, therefore, I think it was for the plaintiff to prove that the damage done to his elephant was caused, or rendered possible, by the defendant’s negligence. In considering the question of negligence, the defendant’s knowledge or want of knowledge that her elephant was of a vicious disposition would be an important point. In a suit of this kind, where an animal like an elephant is concerned, I think the burden of proving negligence is in the first place on the plaintiff who avers it. It might be otherwise if injury by a tiger or bear were concerned.

I agree with the Lower Courts in thinking that it is not proved that the defendant knew that the elephant “Kya Gyi” was of a vicious disposition. It was therefore not incumbent on her to take more than ordinary precautions with him. It does not seem to be shown that ordinary precautions were neglected. It is alleged that “Kya Gyi” twice gored the deceased elephant “Do,” and the mahout called by the plaintiff declares that he had neither bell nor fetters. On the other hand, as pointed out in the judgment of the Court of First Instance, the plaintiff himself admitted that “Kya Gyi” had a bell and fetters on the second occasion. It is admitted that all the other elephants of the defendant had bells and fetters. There is direct evidence, at least as good as that for the plaintiff, that “Kya Gyi” was properly provided with them. In my opinion it has not been proved that there was any negligence on the part of the defendant, and any prima facie case made out by the plaintiff has been rebutted. I therefore hold that the Lower Courts have rightly decided that the defendants are not liable; and I dismiss this appeal with costs.

BOSTOCK-FERARI AMUSEMENT COMPANY v. BROCKSMITH Appellate Court, Indiana, February 14, 1895. Reported in 34 Indiana Appellate Court Reports, 566.

Action by Otto Brocksmith against Bostock-Ferari Amusement Company. From a judgment for plaintiff, defendant appeals.

Comstock, C. J. The complaint alleges that the plaintiff, while driving in his buggy, was injured in consequence of his horse taking fright from the sight of a bear walking along a public street in the city of Vincennes. The action was begun in the Circuit Court of Knox County, and, upon change of venue, tried in the Circuit Court of Sullivan County. The court rendered judgment upon the verdict of the jury in favor of appellee for $750. The complaint was in three paragraphs. The first was dismissed, and the cause was tried upon the amended second and third paragraphs, to which general denial was filed.

The errors relied upon are the action of the court in overruling demurrers to said second and third paragraphs, respectively, of the complaint, and overruling appellant’s motion for a new trial. Some of the reasons set out in the motion for a new trial are that the verdict was contrary to the law, and was not sustained by sufficient evidence.

The question of the sufficiency of the second paragraph of the complaint is not entirely free from doubt, but we conclude that each of said paragraphs is sufficient to withstand a demurrer.

It is sought to maintain an action for damages resulting from the fright of a horse at the sight of a bear, which his keeper and owner was leading along a public street, for the purpose of transporting him from a railroad train, by which he had been carried to Vincennes, to the point in Vincennes at which the bear was to be an exhibit as a part of appellant’s show. It is not claimed, either by allegation or proof, that the show was in itself unlawful; and there is no pretence that the transporting of the bear from one place to another for the purpose of exhibition was unlawful, or in itself negligence. The case is therefore one of the fright of a horse merely at the appearance of the bear while he was being led along the street, was making no noise or other demonstration, and was in the control of his keeper. It appears without contradiction from the evidence that when the horse took fright the bear was doing nothing except going with his keeper. He was muzzled. He had a ring in his nose to which a chain was attached. Said chain was strong enough to hold and control him. He had around his neck a collar about two inches wide and one-half inch thick, to which also was attached a chain. The keeper had both chains in his hand when the accident occurred. The chain connected with the ring in his nose was small. The one connected with his collar was large. It was for the purpose of chaining him at night when he was alone. The chains were strong enough to control the bear. The animal was characterized by the witnesses who knew him as “gentle,” “kind,” “docile.” His keeper testified that he had never known him to be mean or to growl. He testified also that he never knew of a bear scaring a horse; that shortly before the accident the keeper met two ladies in a buggy, and their horse did not scare. He was described as of pretty good size and brown. One witness said he was a “large, ugly-looking, brown bear.”

When a person is injured by an attack by an animal ferae naturae, the negligence of the owner is presumed, because the dangerous propensity of such an animal is known, and the law recognizes that safety lies only in keeping it secure. 2 Am. and Eng. Ency. Law (2d ed.), p. 351. In the case before us the injury did not result from any vicious propensity of the bear. He did nothing but walk in the charge of his owner and keeper, Peter Degeleih. He was being moved quietly upon a public thoroughfare for a lawful purpose.

We have given the facts that are not controverted. There is also evidence leading strongly to support the claim made by appellant that appellee was guilty of negligence, proximately contributing to his injury. Appellant also earnestly argues—supporting its argument with references to recognized authorities—that the owner and keeper of the bear was an independent contractor. But the disposition which we think should be made of the appeal makes it unnecessary to consider these questions. The liability of the appellant must rest on the doctrine of negligence. The gist of the action as claimed by appellee is the transportation of the bear, with knowledge that he was likely to frighten horses, without taking precaution to guard against fright.

1. An animal ferae naturae, reduced to captivity, is the property of its captor, 2 Blackstone’s Comm., *391, *403; 4 Blackstone’s Comm., *235, *236.

2. The owner of the bear had the right to transport him from one place to another for a lawful purpose, and it was not negligence per se for the owner or keeper to lead him along a public street for such purpose. Scribner v. Kelley, (1862) 38 Barb. 14; Macomber v. Nichols, (1876) 34 Mich. 212, 22 Am. Rep. 522; Ingham, Law of Animals, p. 230.

3. The conducting of shows for the exhibition of wild or strange animals is a lawful business. The mere fact that the appearance of a chattel, whether an animal or an inanimate object, is calculated to frighten a horse of ordinary gentleness, does not deprive the owner of such chattel of his lawful right to transport his property along a public highway. Macomber v. Nichols, supra; Holland v. Bartch, (1889) 120 Ind. 46, 16 Am. St. 307; Wabash, etc., R. Co. v. Farver, (1887) 111 Ind. 195, 60 Am. Rep. 696; Gilbert v. Flint, etc., R. Co., (1883) 51 Mich. 488, 16 N. W. 868, 47 Am. Rep. 592; Piolette v. Simers, (1894) 106 Pa. St. 95, 51 Am. Rep. 496. One must use his own so as not unnecessarily to injure another, but the measure of care to be employed in respect to animals and other property is the same. It is such care as an ordinarily prudent person would employ under similar circumstances. This is not inconsistent with the proposition that if an animal ferae naturae attacks and injures a person, the negligence of the owner or keeper is presumed. The evidence is that the horse was of ordinary gentleness, but this fact would not deprive the appellant of the right to make proper use of the street. If the bear had been carelessly managed, or permitted to make any unnecessary noise or demonstration, it would have been an act of negligence.

It is not uncommon for horses of ordinary gentleness to become frightened at unaccustomed sights on the public highway. The automobile, the bicycle, the traction-engine, the steam roller may each be frightful to some horses, but still they may be lawfully used on the public streets. King David said, “An horse is a vain thing for safety.” Modern observation has fully justified the statement. A large dog, a great bull, a baby wagon may each frighten some horses, but their owners are not barred from using them upon the streets on that account. Nor under the decisions would the courts be warranted in holding that the owner of a bear, subjugated, gentle, docile, chained, would not, under the facts shown in the case at the bar, be permitted to conduct the homely brute along the public streets because of his previous condition of freedom.

In Scribner v. Kelley, supra, the court said: “It does not appear that the elephant was at large, but on the contrary that he was in the care, and apparently under the control, of a man who was riding beside him on a horse; and the occurrence happened before the passage of the act of April 2, 1862, regulating the use of public highways. There is nothing in the evidence to show that the plaintiff’s horse was terrified because the object he saw was an elephant, but only that he was frightened because he suddenly saw moving upon a highway, crossing that upon which he was travelling, and fully one hundred feet from him, a large animate object to which he was unaccustomed—non constat that any other moving object of equal size and differing in appearance from such as he was accustomed to see might not have inspired him with similar terror. The injury which resulted from his fright is more fairly attributed to a lack of ordinary courage and discipline in himself, than to the fact that the object which he saw was an elephant.”

4. It is alleged in the complaint that the bear was an object likely to frighten a horse of ordinary gentleness, which fact the appellant well knew. There is no evidence that the bear was an object likely to frighten horses of ordinary gentleness, nor that the appellant knew that the bear was an object likely to frighten horses of ordinary gentleness. The evidence shows, so far as the observation of the keeper and the appellant gave information, that the bear had not frightened horses.

The facts upon the question of negligence are undisputed, and that question is therefore to be determined by the court as a matter of law.

Judgment is reversed, with instruction to sustain appellant’s motion for a new trial.

MARLOR v. BALL In the Court of Appeal, March 1, 1900. Reported in 16 Times Law Reports, 239.

This was an application by the defendant for judgment or a new trial in an action tried before Mr. Justice Phillimore and a special jury at Manchester. The action was brought to recover damages for personal injuries sustained by the plaintiff through being bitten by a zebra belonging to the defendant. The plaintiff was a working man. The defendant was the proprietor of the Chadderton-hall pleasuregrounds, at Oldham, where he kept an exhibition of wild animals. The plaintiff went with his wife and his brother-in-law to see the exhibition, and, having paid for admission, entered the gardens. While they were walking along they found the door of a stable standing open, and went in. There were four zebras inside the stable, each in a separate stall and properly tied up by a halter to the manger. The plaintiff went up to one of the zebras and stroked it. The animal kicked out, and the plaintiff being then standing against the partition, the animal pressed him through the partition, and he fell into the next stall, where another zebra bit his hand, which had to be amputated. At the trial the jury returned a verdict for the plaintiff for £175.

Mr. Montague Lush, for the defendant, in support of the application for judgment or a new trial, contended that there was no evidence on which the defendant could be held liable. The common law obligation of a person who kept animals ferae naturae was to keep them secure, or, in other words, to prevent them from getting loose. He was liable to an action, if, in consequence of a failure on his part to comply with that obligation, any other person was injured. In such a case it was not necessary for the plaintiff to allege negligence. But in this case there had been no failure to comply with that common law obligation. Here the animals were kept secure, they were not loose. The plaintiff, therefore, had to allege negligence, and the alleged negligence appeared to be this, that the defendant did not provide a keeper, or some physical barrier to prevent people from meddling with the animals. But this allegation did not show a cause of action at all. There was no authority for saying that an action lay for not preventing the plaintiff from bringing an injury on himself. It was not sufficient for the plaintiff here to show that the door was open. The door being open might be an invitation to go in, but it was not an invitation to meddle by stroking the zebras. The plaintiff failed to show any negligence on the part of the defendant, and he had no remedy. Counsel referred to Filburn v. The People’s Palace and Aquarium Company (Limited), 25 Q. B. D. 258; and Memberz v. The Great Western Railway Company, 14 App. Cas. 179.

Mr. S. T. Evans, for the plaintiff, said the foundation of the action was that zebras were dangerous animals, and it was the duty of persons who kept dangerous animals to prevent them from doing injury. The leaving the door of the stable unlocked was a default on the part of the defendant. The plaintiff was not in any way warned that these zebras were wild animals. The evidence taken altogether showed that these zebras were kept in much the same way as horses would ordinarily be kept. He referred to May v. Burdett, 9 Q. B. 101.

The Court allowed the application and ordered judgment to be entered for the defendant.

Lord Justice A. L. Smith said it was conceded that a zebra was a dangerous animal, and that by law a man who kept a dangerous animal must do so at his peril, and that if any damage resulted, then, apart from any question of negligence, he was liable for the damage. But that was subject to this, that the person who complained of damage must not have brought the injury on himself. Where the plaintiff did something which he had no business to do,—e. g. by meddling, as the plaintiff in this case had done,—then the defendant was not liable. That was common law, and it was also common sense. In Filburn v. The People’s Palace (Limited), Lord Esher expressly dealt with this point. He there said: “It cannot possibly be said that an elephant comes within the class of animals known to be harmless by nature, or within that shown by experience to be harmless in this country, and consequently it falls within the class of animals that a man keeps at his peril, and which he must prevent from doing injury under any circumstances, unless the person to whom the injury is done brings it on himself.” The action, therefore, could not be maintained on the common law liability. The plaintiff then set up a claim for negligence, viz., that the door was not kept locked, and that there was no keeper at hand. The evidence showed that the door had been shut, but had got opened. If the plaintiff had been kicked while walking along the stable, an action might have lain, but the plaintiff went into the stall and meddled with the animal. Even if the fact of the door being open was an invitation to go into the stable, it was not an invitation to stroke the animals. In his opinion there was no evidence to go to the jury, and judgment must be entered for the defendant.

Lord Justice Collins said the plaintiff’s case was put on the footing of these zebras being wild animals. The duty of a person who owned a wild animal, as laid down in May v. Burdett, was to keep it secure at his peril. The evidence in this case all went to show that these animals were kept secure within the meaning of that case. In his opinion there was no evidence of any invitation to go and tamper with the animals.

Lord Justice Romer concurred.

MASON v. KEELING In the King’s Bench, Michaelmas Term, 1699. Reported in 12 Modern Reports, 332.

Action on the case, in which the plaintiff declared that on the twentieth of June, in the eleventh of the king, the defendant quendam canem molossum valde ferocem did keep, and let him go loose unmuzzled per publica compita, so that pro defectu curæ of the defendant the plaintiff was bit and worried by the said dog, as he was peaceably going about his business in such a street. There was another count, in which it was laid that the defendant knew the dog ad mordend. assuet. To the first count there was a demurrer, and to the second not guilty.

Gould, J. No doubt but in the case of sheep there ought to be a sciens, because that is an accidental quality, and not in the nature of a dog. And as to property of a dog, the Books distinguish; for a man has a property in a dog that is a mastiff or spaniel, for the one is for the guard of his house, the other for his pleasure; but this here is a mongrel, and laid to be valde ferocem, and that must be an innate fierceness, and not accidental; and if a dog be assuet. to bite cows, and the master know it, that will not be sufficient knowledge to make him liable for his biting sheep. Besides, this case is distinguishable in respect of the place, for the law takes notice of highway, and is a security for passengers; and it would be dangerous to keep such dogs near the highway, where all sorts of people pass at all hours; and to maintain this issue, they must give a natural fierceness in evidence.

Holt, C. J. If it had been said that the defendant knew the dog to be ferox, I should think it enough. The difference is between things in which the party has a valuable property, for he shall answer for all damages done by them; but of things in which he has no valuable property, if they are such as are naturally mischievous in their kind, he shall answer for hurt done by them without any notice; but if they are of a tame nature, there must be notice of the ill quality; and the law takes notice that a dog is not of a fierce nature, but rather the contrary; and the presumption is against the plaintiff; for can it be imagined a man would keep a fierce dog in his family wittingly? If any beast in which I have a valuable property do damage in another’s soil, in treading his grass, trespass will lie for it; but if my dog go into another man’s soil, no action will lie. See the case of Millan v. Hawtree, 1 Jones, 131, Poph. 161, Latch, 13, 119, that scienter is the gît of the action; and so is 1 Cro., where it was doubted whether the scienter should go to the keeping or quality; nor does it appear here but it was an accidental fierceness, or suppose it were an innate one to this dog particularly; and it had been given to the owner but an hour before, shall he take notice of all the qualities of his dog at his peril, or shall he have his action against the giver for bestowing him a naughty dog? In case a dog bites pigs, which almost all dogs will do, a scienter is necessary. 1 Cro. 255. And I do not doubt but if it be generally laid that a dog was used to bite animalia, and the defendant knew of it, it will be enough to charge him for biting of sheep, &c.; and by animalia shall not be intended frogs or mice, but such in which the plaintiff has property.

And judgment was given for the defendant by Holt, Chief-Justice, and Turton, Justice; Gould, J., mutante opinionem suam.

De GRAY v. MURRAY Supreme Court, New Jersey, June 8, 1903. Reported in 69 New Jersey Law Reports, 458.

Gummere, C. J. This was an action to recover for injuries resulting to the plaintiff in error (the plaintiff below) from the bite of a dog, owned by the defendant in error, which attacked her while she was walking on the public street. At the close of the testimony the trial judge directed a verdict for the defendant, and the plaintiff seeks to review the judgment entered upon that verdict.

It is the settled law that the owner of a dog will not be held responsible for injuries resulting to another person from its bite unless it be shown that the dog had previously bitten some one else, or was vicious, to the knowledge of the owner. Smith v. Donohue, 20 Vroom, 548, and cases cited.

[After discussing the evidence, and holding that there was an utter failure to prove scienter.]

But even if the evidence submitted would support the conclusion that the dog had a propensity to bite, and that what the defendant heard about its attack on the boy charged him with knowledge of that propensity, the direction of a verdict in his favor was not erroneous. In England, and in some of our sister states, it is held that the owner of an animal which has a propensity to attack and bite mankind, who keeps it with the knowledge that it has such a propensity, does so at his peril, and that his liability for injuries inflicted by it is absolute. A leading case is that of May v. Burdett, 9 Q. B. (N. S.) 112, in which it is stated that “the conclusion to be drawn from all the authorities appears to be this: that a person keeping a mischievous animal, with knowledge of its propensity, is bound to keep it secure at his peril, and that if it does mischief, negligence is presumed without express averment. The negligence is in keeping such an animal after notice.” Subsequently, the Court of Exchequer Chamber, adopting as accurate the principle underlying the decision of May v. Burdett, and referring to the opinion in that case, among others, as an authority for its conclusion, declared, in the case of Fletcher v. Rylands, L. R. 1 Exch. 265, that “one who, for his own purposes, brings upon his land, and keeps there, anything likely to do mischief if it escapes, is prima facie answerable for all the damage which is the natural consequence of its escape.” The application of this principle led the court to fix liability upon the owner of land, who had stored water in a reservoir built thereon, for injury done to adjoining property by water escaping from the reservoir, notwithstanding that such escape was not due to any negligence on the part of the owner. Ten years after the decision of Fletcher v. Rylands, the rule laid down in that case was applied in this state, at circuit, in the case of Marshall v. Welwood, 9 Vroom, 339, and the owner of a steam boiler, which blew up and wrecked adjacent property, was held liable for the damage done, notwithstanding the fact that the bursting of the boiler was not due to any negligence on his part. The case was subsequently reviewed here, on rule to show cause, and this court, in a masterly opinion by the late Chief Justice Beasley, expressly disapproved of the doctrine laid down in Fletcher v. Rylands (which, as I have already stated, is rested, among other decisions, on May v. Burdett), and declared that no man is, in law, an insurer that the acts which he does, such acts being lawful and done with care, shall not injuriously affect others; and that an injury which results from a lawful act, done in a lawful manner, and without negligence on the part of the person doing the act, will not support an action. Applying that principle to the case in hand, this court then held that the owner of a steam boiler, which he has in use on his own property, is not responsible, in the absence of negligence, for the damages done by its bursting. The principle laid down in Marshall v. Welwood was reiterated by this court in the case of Hill v. Ulshowski, 32 Id. 375.

The right of a man to keep a vicious dog for the protection of his home and property is conceded in the case of Roehers v. Remhoff, 26 Vroom, 475. He is, of course, bound to exercise a degree of care, commensurate with the danger to others which will follow the dog’s escape from his control, to so secure it that it will not injure any one who does not unlawfully provoke or intermeddle with it. Worthen v. Love, 60 Vt. 285. But if the owner does use such care, and the dog nevertheless escapes and inflicts injury, he is not liable.

In the case now under consideration the undisputed evidence makes it clear that the defendant fully discharged the duty of using due care to prevent the escape of his dog from his premises, and that the plaintiff’s injury was not due to any neglect in that regard upon his part. She was bitten in the early morning, between half-past six and seven o’clock. On the preceding evening the defendant shut the dog in his carpenter shop (which adjoined his dwelling) and locked him in. During the night the dog gnawed away the woodwork from around the lock of the door to such an extent that the lock became detached, thus permitting the door to open and the dog to escape. That a reasonably prudent man would not have anticipated any such occurrence must be admitted.

The judgment under review should be affirmed.

CROWLEY v. GROONELL Supreme Court, Vermont, February 9, 1901. Reported in 73 Vermont Reports, 45.

Case for an injury to the plaintiff by the defendant’s dog. Plea, the general issue. Trial by jury, Rutland County, March Term, 1900, Rowell, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

It appeared that the plaintiff, an old man, was a neighbor of the defendant and went one morning to the defendant’s barn, where the latter was, to buy some potatoes of him; that when the plaintiff got near the barn, the defendant’s dog, which was large, and was lying near the barn door, assaulted the plaintiff by jumping up and putting his feet upon him and throwing him down, breaking his hip. The testimony was conflicting as to whether this assault was vicious or playful and as to the propensities of the dog known to the plaintiff.

Watson, J. The only exception upon which the defendant relies is the one to that part of the charge where the court said that a cross and savage disposition on the part of the dog was not necessary in order to impose liability; that a mischievous propensity to commit the kind of assault complained of was enough if the plaintiff’s case was otherwise made out; and that in respect to imposing liability, it made no difference whether such assault proceeded from good nature or ill nature, from ugliness or playfulness.

The defendant contends that the duty of restraint attaches only when the owner or keeper has reason to apprehend that the dog may do damage by reason of its viciousness or ferocity, and that the acts of the dog, proceeding from good nature or playfulness, cannot render the defendant liable. If a man have a beast that is ferae naturae as a lion, a bear, a wolf, if he get loose and do harm to any person, the owner is liable to an action for damages, though he have no particular notice that he had done any such thing before. The same principle applies to damages done by domestic animals, except that as to them, the owner must have seen or heard enough to convince a man of ordinary prudence of the animal’s inclination to commit the class of injuries complained of. With notice to the owner of such propensity in the animal, he is liable for whatever damages may be suffered by person or property therefrom. It makes no difference whether the animal was of cross and savage disposition and committed the injury by reason of its viciousness and ferocity, or whether such injury resulted from good nature and playfulness—the intent of the animal is not material. The owner or keeper having knowledge of its disposition to commit such injuries must restrain it at his peril, and it is no answer to say that the animal was not cross or savage and was in good nature and playfulness.

In State v. McDermott, 6 Atl. Rep. 653 [49 N. J. Law, 163], at the close of the plaintiff’s evidence, the defendant moved for a nonsuit on the ground that it did not appear that the dog had bitten McDermott maliciously, and also on the ground that there was no evidence that the dog had bitten other persons except in play, or that the defendant had knowledge of the propensity of the dog to bite. The motion was overruled. It was contended that although several persons had been bitten by the dog, of which the defendant had notice, yet it appeared that in every instance the biting occurred while the dog was in a playful mood; that damages could not be recovered where it was shown that the dog had a propensity to bite only in play; and that to justify a recovery, it must appear that the dog was in the habit of biting mankind while in an angry mood, actuated by a ferocious spirit. It was held that this was not the law,—that an action could be maintained against the owner by a party injured upon evidence that a dog, with the knowledge of the owner, had a mischievous propensity to bite mankind, whether in anger or not; for in either case, the person bitten would suffer injury, and that mischievous propensity, within the meaning of the law, was a propensity from which injury is the natural result.

There was no error in the charge, and judgment is affirmed.

Erle, C. J., in COX v. BURBIDGE (1863) 13 Common Bench, New Series, 435–437.

I am of opinion that this rule must be made absolute, on the ground that there was a total absence of evidence to support the cause of action alleged. The facts I take to be these: The plaintiff, a child of tender age, was lawfully upon the highway, and a horse, the property of the defendant, was straying on the highway. As between the owner of the horse and the owner of the soil of the highway or of the herbage growing thereon, we may assume that the horse was trespassing; and, if the horse had done any damage to the soil, the owner of the soil might have had a right of action against his owner. So, it may be assumed, that if the place in question were a public highway, the owner of the horse might have been liable to be proceeded against under the Highway Act. But, in considering the claim of the plaintiff against the defendant for the injury sustained from the kick, the question whether the horse was a trespasser as against the owner of the soil, or whether his owner was amenable under the Highway Act, has nothing to do with the case of the plaintiff. I am also of opinion that so much of the argument which has been addressed to us on the part of the plaintiff as assumes the action to be founded upon the negligence of the owner of the horse in allowing it to be upon the road unattended, is not tenable. To entitle the plaintiff to maintain the action, it is necessary to show a breach of some legal duty due from the defendant to the plaintiff; and it is enough to say that there is no evidence to support the affirmative of the issue that there was negligence on the part of the defendant for which an action would lie by the plaintiff. The simple fact found is, that the horse was on the highway. He may have been there without any negligence of the owner: he might have been put there by a stranger, or might have escaped from some enclosed place without the owner’s knowledge. To entitle the plaintiff to recover, there must be some affirmative proof of negligence in the defendant in respect of a duty owing to the plaintiff. But, even if there was any negligence on the part of the owner of the horse, I do not see how that is at all connected with the damage of which the plaintiff complains. It appears that the horse was on the highway, and that, without anything to account for it, he struck out and injured the plaintiff. I take the well-known distinction to apply here, that the owner of an animal is answerable for any damage done by it, provided it be of such a nature as is likely to arise from such an animal, and the owner knows it. Thus, in the case of a dog, if he bites a man or worries sheep, and his owner knows that he is accustomed to bite men or to worry sheep, the owner is responsible; but the party injured has no remedy unless the scienter can be proved. This is very familiar doctrine; and it seems to me that there is much stronger reason for applying that rule in respect of the damage done here. The owner of a horse must be taken to know that the animal will stray if not properly secured, and may find its way into his neighbor’s corn or pasture. For a trespass of that kind, the owner is of course responsible. But if the horse does something which is quite contrary to his ordinary nature,—something which his owner has no reason to expect he will do, he has the same sort of protection that the owner of a dog has; and everybody knows that it is not at all the ordinary habit of a horse to kick a child on a highway. I think the ground upon which the plaintiff’s counsel rests his case fails. It reduces itself to the question whether the owner of a horse is liable for a sudden act of a fierce and violent nature which is altogether contrary to the usual habits of the horse, without more.

DICKSON v. MCCOY Court of Appeals, New York, June Term, 1868. Reported in 39 New York Reports, 400.

This was an action for injury to the plaintiff by the horse of the defendant. The plaintiff, a child of ten years, was passing the stable of the defendant, upon the sidewalk of a populous street in the city of Troy, when the defendant’s horse came out of the stable, going loose and unattended, and, in passing, kicked the plaintiff in the face. The complaint alleged that the horse was “of a malicious and mischievous disposition, and accustomed to attack and injure mankind;” also, that the defendant “wrongfully and negligently suffered the said horse to go at large in and upon the public streets,” etc. The proof as to the disposition of the horse was only to the effect that he was young and playful, and, when loose in the street, was accustomed to run and kick in the air, but had never been seen to kick at any person. The defendant moved for a nonsuit, on the ground that there was no proof that the horse was vicious, which was refused. The defendant also requested the court to charge that there was no proof that the horse was possessed of any vicious propensity, or mischievous habit, which required the defendant to exercise special care over him; which the court declined to charge. The court did charge, that “it was for the jury to find, under the evidence, whether the defendant was or was not guilty of negligence in permitting the animal, which did the injury complained of, to run at large, as detailed by the witnesses on the part of the plaintiff,” etc.

The jury found a verdict for the plaintiff for $500, which was affirmed, on appeal, at the General Term, and the defendant appeals to this court.

Dwight, J. I agree with the counsel for the defendant that there is no proof in the case to sustain the allegation in the complaint, that this horse was vicious and accustomed to attack and injure mankind. The fact that a horse is young and playful, that he kicks in the air, and runs and gambols when loose in the street, is no proof of a malicious or vicious disposition. But I regard the allegation as unnecessary, and the absence of proof on the point as not affecting the right to recover. The finding of the jury, under the charge of the court, was clearly to the effect that the defendant was guilty of negligence in suffering his horse to go at large upon the sidewalk, as shown in the case. And there was a sufficient allegation to that effect in the complaint. It is not necessary that a horse should be vicious to make the owner responsible for injury done by him through the owner’s negligence. The vice of the animal is an essential fact only when, but for it, the conduct of the owner would be free from fault. If the most gentle horse be driven so negligently as to do injury to persons or property, the owner or driver will be responsible. Certainly, not less so if the horse be negligently turned loose in the street without restraint or control. The motion for a nonsuit was properly denied. The only question in the case was that propounded by the court to the jury, “was the defendant guilty of negligence in permitting the horse to go at large in the street?” The court, I think, might very properly have charged as requested by the defendant, that there was no proof to justify the jury in finding that the horse was possessed of any vicious propensity or mischievous habit. And, yet, it is, in one sense, a mischievous habit for a horse to run and play in the public streets. Though it is no proof of a mischievous disposition, it is liable to produce mischievous results. There was, therefore, no error in the refusal to charge as requested. The instructions of the court to the jury were correct, and the verdict is conclusive upon all the questions in the case.

The judgment must be affirmed.

[The opinion of Grover, J., is omitted.]

DECKER v. GAMMON SUPREME JUDICIAL COURT, MAINE, 1857. Reported in 44 Maine Reports, 322.

This is an action on the case to recover the value of a horse alleged to have been injured by the defendant’s horse, and comes forward on exceptions to the rulings of Goodenow, J.

The plaintiff introduced evidence tending to prove that at night, on the 13th of September, 1855, he put his horse into his field well and uninjured. The next morning, September 14, his horse and the defendant’s were together in his, the plaintiff’s close, the defendant’s horse, having, during the night, escaped from the defendant’s enclosure, or from the highway, into the close of the plaintiff, and that the plaintiff’s horse was severely injured by the defendant’s horse, by kicking, biting, or striking with his fore feet, or in some other way, so that he died in a few days after.

The defendant requested the presiding judge to instruct the jury that to entitle the plaintiff to recover against the defendant he must prove, in addition to other necessary facts, that the defendant’s horse was vicious, and that the defendant had knowledge of such viciousness prior to the time of the alleged injury. The presiding judge declined giving these instructions, and directed the jury that if they should find that the defendant owned the horse alleged to have done the injury to the plaintiff’s horse, and if, at the time of the injury, he had escaped into the plaintiff’s close, and was wrongfully there, and while there occasioned the injury, and that the horse died in consequence, that the plaintiff would be entitled to recover the value of the horse so injured. That it was not necessary for the plaintiff to prove that the horse was vicious, or accustomed to acts of violence towards other animals or horses, or that the owner had notice of such viciousness or habits.

The jury returned a verdict for the plaintiff.

Davis, J. There are three classes of cases in which the owners of animals are liable for injuries done by them to the persons or the property of others. And in suits of such injuries the allegations and proofs must be varied in each case, as the facts bring it within one or another of these classes.

1. The owner of wild beasts, or beasts that are in their nature vicious, is, under all circumstances, liable for injuries done by them. It is not necessary, in actions for injuries by such beasts, to allege or prove that the owner knew them to be mischievous, for he is conclusively presumed to have such knowledge; or that he was guilty of negligence in permitting them to be at large, for he is bound to keep them in at his peril.

“Though the owner have no particular notice that he did any such thing before, yet if he be a beast that is ferae naturae if he get loose and do harm to any person, the owner is liable to an action for the damage.” 1 Hale, P. C. 430.

“If they are such as are naturally mischievous in their kind, in which the owner has no valuable property, he shall answer for hurt done by them, without any notice; but if they are of a tame nature, there must be notice of the ill quality.” Holt, C. J. Mason v. Keeling, 12 Mod. R. 332.

“The owner of beasts that are ferae naturae must always keep them up, at his peril; and an action lies without notice of the quality of the beasts.” Rex v. Huggins, 2 Lord Raym. 1583.

2. If domestic animals, such as oxen and horses, injure any one, in person or property, if they are rightfully in the place where they do the mischief, the owner of such animals is not liable for such injury unless he knew that they were accustomed to do mischief. And in suits for such injuries, such knowledge must be alleged, and proved. For unless the owner knew that the beast was vicious he is not liable. If the owner had such knowledge he is liable.

“The gist of the action is the keeping of the animal after knowledge of its vicious propensities.” May v. Burdett, 58 Eng. C. L. 101.

“If the owner have knowledge of the quality of his beast, and it doth anybody hurt, he is chargeable in an action for it.” 1 Hale P. C. 430.

“An action lies not unless the owner knows of this quality.” Buxendin v. Sharp, 2 Salk. 662.

“If the owner puts a horse or an ox to grass in his field, and the horse or ox breaks the hedge and runs into the highway, and gores or kicks some passenger, an action will not lie against the owner unless he had notice that they had done such a thing before.” Mason v. Keeling, 12 Modern R. 332.

“If damage be done by any domestic animal, kept for use or convenience, the owner is not liable to an action on the ground of negligence, without proof that he knew that the animal was accustomed to do mischief.” Vrooman v. Sawyer, 13 Johns. R. 339.

3. The owner of domestic animals, if they are wrongfully in the place where they do any mischief, is liable for it, though he had no notice that they had been accustomed to do so before. In cases of this kind the ground of the action is that the animals were wrongfully in the place where the injury was done. And it is not necessary to allege or prove any knowledge on the part of the owner that they had previously been vicious.

“If a bull break into an enclosure of a neighbor, and there gore a horse so that he die, his owner is liable in an action of trespass quare clausum fregit, in which the value of the horse would be the just measure of damages.” Dolph v. Ferris, 7 Watts & Serg. R. 367.

“If the owner of a horse suffers it to go at large in the streets of a populous city he is answerable in an action on the case for a personal injury done by it to an individual without proof that he knew that the horse was vicious. The owner had no right to turn the horse loose in the streets.” Goodman v. Gay, 3 Harris R. 188. In this case the writ contained the allegation of knowledge on the part of the defendant; but the court held that it was not material and need not be proved.

The case before us is clearly within this class of cases last described. It is alleged in the writ that “the plaintiff had a valuable horse which was peaceably and of right depasturing in his own close, and the defendant was possessed of another horse, vicious and unruly, which was running at large where of right he ought not to be; and being so unlawfully at large, broke into the plaintiff’s close, and injured the plaintiff’s horse, &c.” It is also alleged that “the vicious habits of the horse were well known to the defendant;” but this allegation was not necessary, and may well be treated as surplusage. If the defendant had had a right to turn his horse upon the plaintiff’s close it would have been otherwise. But if the horse was wrongfully there the defendant was liable for any injury done by him, though he had no knowledge that the horse was vicious. The gravamen of the charge was that the horse was wrongfully upon the plaintiff’s close; and this was what was put in issue by the plea of not guilty.

Nor are these principles in conflict with the decision in the case of Van Leuven v. Lyke, 1 Comstock, 515. In that case the action was not sustained because the declaration was not for trespass quare clausum with the other injuries alleged by way of aggravation. But in that case there was no allegation that the animal was wrongfully upon the plaintiff’s close; or that the injury was committed upon the plaintiff’s close. 4 Denio R. 127. And in the Court of Appeals it was expressly held that “if the plaintiff had stated in his declaration that the swine broke and entered his close, and there committed the injury complained of, and sustained his declaration by evidence, he would been entitled to recover all the damages thus sustained.” 1 Coms. 515, 518.

In the case before us, though the declaration is not technically for trespass quare clausum, it is distinctly alleged that the defendant’s horse, “being so unlawfully at large, broke and entered the plaintiff’s close, and injured the plaintiff’s horse,” which was there peaceably and of right depasturing. This was sufficient; and the instruction given to the jury, “that if the defendant’s horse, at the time of the injury, had escaped into the close, and was wrongfully there, and while there occasioned the injury, then the plaintiff would be entitled to recover,” was correct. And this being so, the instruction requested “that the plaintiff must prove, in addition to other necessary facts, that the defendant’s horse was vicious, and that the defendant had knowledge of such viciousness prior to the time of the injury,” was properly refused.

Cutting, J., did not concur.

Exceptions overruled.

DOYLE v. VANCE Supreme Court, Victoria, April 16, 1880. Reported in 6 Victorian Law Reports, Cases at Law, 87.

Stawell, C. J. A dog belonging to the defendant got on land belonging to the plaintiff, how, does not appear, and barked at a horse of the plaintiff which was then grazing quietly in an inclosed field; the horse ran away, tried to leap over the fence, fell and broke its neck. The plaint was in the ordinary form, alleging a scienter in the defendant. At the trial, an application was made to add a count for trespass by the dog on the plaintiff’s land. The application was granted, and though the amendment was not formally written on the plaint, it may now be considered as having been made. A verdict was given for the plaintiff, with £10 damages.

The defendant has appealed, and the question we have to consider is whether, as a matter of law, he is liable for the trespass committed by his dog. It would have been competent for the judge at the trial to have found that the dog was on the land, by the leave and license of the plaintiff; all the circumstances point to the probability of that being the case. But he has found that the dog was there as a trespasser. There are a number of cases in which judges have expressed obiter dicta, as to the non-liability of an owner for injuries done by his dog, and curious and singular reasons—that a dog was the companion of man (and the like)—have been assigned for those dicta; reasons which courts have treated as entitled to high respect, and which have not been dissented from. There is, however, a comparatively recent case, Read v. Edwards, supra, in which an action was brought against the owner of a dog for having chased and destroyed game, the declaration alleging scienter by the defendant. All the dicta of the learned judges to which I have referred were cited in the argument, were commented on and received attention. The case was decided on another point, but Mr. Justice Willes, who delivered the judgment of the Court, said:—

“The question was much argued whether the owner of the dog is answerable in trespass for every unauthorized entry of the animal into the land of another, as in the case of an ox, and reasons were offered, which we need not now estimate, for a distinction in this respect between oxen, and dogs or cats, on account, first, of the difficulty or impossibility of keeping the latter under restraint; secondly, the slightness of the damage which their wandering ordinarily causes; thirdly, the common usage of mankind to allow them a wider liberty; and lastly, their not being considered in law so absolutely the chattels of the owner as to be the subject of larceny. It is not, however, necessary in the principal case to answer that question.”

The legitimate inference from these observations is that the question, whether the dicta I have referred to are law, has not yet been decided, and that the subject is open for consideration. There may be very cogent reasons, socially, for exempting the owner from liability. But there is no reason which a court of law can recognize. Serious injury might be inflicted by a dog revelling in a highly-cultivated parterre, and can it with propriety be said that the owner of the garden can obtain no compensation? It has been decided that a dog can be distrained for damage feasant: Bunch v. Kennington, 1 Q. B. 679. There can be no question, if an ox were substituted for a dog, as having done the mischief complained of in the present case, the owner would be liable. Cox v. Burbidge, supra, which was cited, does not apply. There, the defendant’s horse, being on the highway, kicked the plaintiff, a child who was playing there. The defendant was held not guilty of actionable negligence; but that was on the ground that the horse had a right to be on the highway, as well as the child, and was therefore not a trespasser.

In Lee v. Riley, supra, through defect of fences which it was the defendant’s duty to repair, the defendant’s mare strayed in the night time from his close into an adjoining field, and so into a field of the plaintiff’s, in which was a horse. From some unexplained cause the animals quarrelled, and the result was that the plaintiff’s horse received a kick from the defendant’s mare, which broke its leg, and it was necessarily killed. It was held that the defendant was answerable for the mare’s trespass, and the damage was not too remote. The decision was based on the fact that the defendant’s mare trespassed on the plaintiff’s land, and that it was the duty of the owner of an animal to keep it from trespassing. In Ellis v. The Loftus Iron Co., supra, the defendant’s horse having injured the plaintiff’s mare by biting and kicking her through the fence separating the plaintiff’s land from the defendants’, it was held that there was a trespass by the act of the defendants’ horse, for which the defendants were liable, apart from any question of negligence on their part.

The owner of an animal is therefore responsible for any damage fairly resulting from a trespass by that animal. The damage here has resulted from the trespass, and the verdict will therefore stand.

The argument based upon “The Dog Act 1864” (No. 229), sec. 15, enacting that the owner of a dog shall be liable for injury done to sheep, without proof of scienter, should be noticed; it was urged that the necessity for passing such an enactment implied that there was previously no liability. But that argument goes too far. One part of the enactment is declaratory, and the other is new.

Barry, J. I am of the same opinion. It is remarkable that this question should not have been settled until now, and, apparently from a desire to avoid overruling old cases which had been decided on the most subtle reasons, the judges have abstained from considering the question in a broad aspect. The old reports abound with expressions of peculiar regard for dogs and cats; and Lord Tenterden does not think it beneath his dignity to quote, in his book on shipping, “if mice eat the cargo, and thereby occasion no small injury to the merchant, the master must make good the loss, because he is guilty of a fault; yet if he had cats on board his ship, he shall be excused.” One reason given for the exemption of liability, so far as the dog is concerned, is on account of his familiarity with man. But we cannot regard these every day questions in the same subtle way as they were regarded three hundred years ago. The doctrine of trespass is considered on much more reasonable grounds in these days. Where sheep, oxen, or horses, commit a trespass, it has always been held that the owner is liable; and that liability has been extended to poultry, and poultry are as much domesticated as a dog or a cat. In Brown v. Giles, 1 C. & P. 118, Mr. Justice Park is reported to have said that he was decidedly of opinion that a dog jumping into a field without the consent of its master, not only was not a trespass, but was no trespass at all on which an action could be maintained. But that remark was merely obiter; the case was decided for the plaintiff on another point. The learned judge has found that there was a trespass. The dog was left to roam at its discretion, uncontrolled by its master.

Stephen, J. I also concur. It seems to have been considered, in old times, that there was a marked distinction between trespass by a dog, and trespass by an ox. Now, as a general rule, no such distinction is made. I cannot see why there should be any. This case illustrates how far the law ought to be altered, so as to preserve its accordance with change of time and place. Of course, the Court cannot alter the clearly-expressed language of an act of Parliament, though the reason for it may have ceased. And so also as to actual decisions of the Courts. If there is reason to alter the law, the legislature must do it. But on this question, there have been no more than obiter dicta based upon reasons which have no longer any existence. At one time a dog could not be the subject of a theft. The Court is at liberty, within reasonable limits, to meet the changed circumstances of the present day. I can see no sound reason why there should be a difference between the case of trespass by a dog, and one by an ox.

Appeal dismissed.

TROTH v. WILLS Superior Court, Pennsylvania, July 29, 1898. Reported in 8 Pennsylvania Superior Court Reports, 1.

Trespass for personal injuries. Before Brégy, J.

It appears from the evidence that the plaintiff, a lady about fifty-five years of age, was temporarily living with her son, in a small country place, and the cow of the defendant strayed into the garden belonging to the son. The plaintiff, seeing the cow in the garden, came out of her son’s house and attempted to drive the cow out of the garden back into the pasture field, from where she entered into the garden. The plaintiff alleges that while so driving the cow out of the garden back into the field, the cow deliberately went towards the field, and that she followed closely behind the cow, when the cow suddenly turned her head and butted the plaintiff in the abdomen, and hence her injuries.

Defendant requested (Request No. 5) a ruling, that, under all the evidence, the verdict should be for the defendant. The court declined so to rule. Verdict and judgment for plaintiff. Defendant appealed.

Smith, J. It is not necessary, in disposing of this case, to determine the liability of the owner of a domestic animal for all its acts while trespassing upon another’s land. In such cases, the primary trespass is the entry of the animal upon the land; the attendant damage for which the owner may be held liable is matter of aggravation. The minimum liability of the owner is for acts arising from the natural propensities of the species, and from special characteristics and acquired habits of the individual of which the owner has notice. When the primary trespass is the wilful act of the owner, he may be held to a larger measure of responsibility; thus if he take a dog into a field where he is himself a trespasser, and the dog there kills or injures sheep, this, though its first offence, may be laid as an aggravation of the trespass: Beckwith v. Shordike, Burr. 2092; Michael v. Alestree, 2 Lev. 172, cited in Dolph v. Ferris, 7 W. & S. 367. Beyond this, the authorities appear unsettled, and principle and analogy form the only guide. Doubtless there may be mischief so far independent of the primary trespass, and unrelated to the propensity or habit leading to this, that it cannot be deemed matter of aggravation. In my view, however, the mischievous act, when incident to the primary trespass, in any of its aspects, or so closely associated with it as to form a substantive part or an immediate result of it, is a legitimate matter of aggravation, for which the owner should be held liable. In such case, the propensity or habit leading to the primary trespass may be regarded as the proximate cause of the resulting injury. If, for example, trespassing cattle, in order to reach the vegetation in a hotbed, break its glass covering, the owner must be held liable for this injury, though cattle are not by nature prone to break glass. Such breaking is incident to the primary trespass, and grows out of the propensity leading to this. If an animal injure a person lawfully trying to prevent it from trespassing, the owner should be held liable, though the injury be one which the animal is not prone to commit. In such case the mischievous act is closely associated with the primary trespass, and in fact grows directly out of it. The same principle must govern if a person be injured in trying to prevent the continuance of a trespass, or of acts forming an aggravation of it.

In this view of the principles which should govern the determination of this case, the injury to the plaintiff must be deemed an aggravation of the trespass committed by the animal in entering the garden. This injury, indeed, is not such as a cow is ordinarily prone to commit; and there is no evidence that the defendant’s cow had contracted the habit of making such assaults. But the act of the animal was one to which a creature of that kind is naturally disposed on being disturbed while feeding; and it was so directly associated with the primary trespass that, unless the plaintiff’s right to prevent a continuance of this be denied, there can be no ground for questioning the liability of the owner. This right cannot be controverted, for under the circumstances the act of the plaintiff is to be regarded as that of the tenant of the premises. The act of the animal by which the plaintiff was injured, so far from being independent of the primary trespass, or unrelated to it, grew directly out of the propensity in which this originated, coupled with the plaintiff’s attempt to prevent its continuance. The defendant’s fifth point was therefore properly refused. The case was submitted to the jury with suitable instructions, and their finding on the questions involved was concurred in by the trial court.

The judgment is affirmed.

Wickham, J. (dissenting.) ... We are called on to determine whether the rule, so far as our authority goes, shall be established in Pennsylvania, that the owner of a useful, gentle, and domestic animal, belonging to a class recognized from the earliest times as harmless to man, watched, driven to and from the pasture fields, fed and milked by women and children the world over, shall be responsible for the conduct of the animal, foreign to its well-known nature and habits, if it happen that through any negligence of such owner, or his servant, it is permitted to trespass on the land of another, and there injures a third party.

The authorities on this subject are numerous and impossible to reconcile. Some of them rest on statutes or ordinances, not always adverted to in the text-books or digests, in which they are hastily cited. Others are based on the theory, that the right to recover exists because of the trespass to realty, and that any unusual and not to be expected injury caused by the animal to the person of the owner of the land, or his other property, must be alleged and proved by way of aggravation of damages. Another class of cases holds that all injuries committed by an animal, in a place where it has no right to be, must be compensated for by the owner. It is on the latter theory of the law that the plaintiff must recover, if she can sustain her action, as we do not deem it worth while to notice the few erratic and sporadic cases, seemingly decided on no discoverable reason, except an assumed natural equity, that any one injured by anything, animate or inanimate, belonging to another, should be compensated by the owner.

As has already been observed, the plaintiff was not the owner of the land trespassed upon, and it may be remarked that she is aided by no statute.

It is argued that the appellant’s cow was vicious. There is no evidence even suggesting such a tendency, and the learned trial judge so instructed the jury. Conceding that the animal was breachy, as alleged by the plaintiff, this indicated no ferocity or proneness to attack people. Any one, acquainted with the nature and habits of horses and cows, knows that usually the most intelligent and gentle animals of these species are the most cunning and successful in finding their way into forbidden inclosures and the readiest to run away when discovered. As was said in Keshan v. Gates, 2 Thomp. & C. (N. Y. Sup. Ct.) 288: “The vicious habits or propensities which the owner of an animal must, when known to him, guard against, are such as are directly dangerous, such as kicking and biting in horses, and hooking in horned animals, and biting in dogs. These habits or propensities may be indulged in at any moment and are inevitably dangerous.”

The adoption of the rule, sanctioned by the decisions of many respectable tribunals in other states, that the owner of every trespassing domestic animal is liable merely because it is a trespasser for all injuries it may commit, however contrary to its usual nature and disposition, and regardless of his knowledge of its special viciousness, might often lead to strange and unthought-of consequences. For instance, suppose that a pet lamb, always regarded as a harmless playmate of children, is permitted to wander from its owner’s premises into those of a neighbor (this as well as the next illustration is not a supposititious case), and there, in play or anger, butts a child from a high veranda, or a trespassing hatching hen, discovered on its nest by the little son of the owner of the premises, pecks out the eye of the boy as he is lawfully trying to drive it away, the unfortunate owner would be liable in each instance for all the resulting damages. In vain would he urge that the animal causing the injury belonged to a class ordinarily docile in its nature and harmless to man; that he had no reason to anticipate that it would do such unusual mischief; and that he was only responsible for the things hens, lambs, and milch cows usually do and may be expected to do when trespassing, that is, for the natural and probable consequences of their trespasses. The answer, under the rule we are considering, would be: “You were guilty of negligence in permitting your animal to trespass, and therefore you are liable for all its freaks, for the consequences of the wrong, near and remote, probable and improbable, for the things you had reason to anticipate, and those which no one would be likely to think could happen, save as a remote possibility.” The results which might follow the application of such a rule demand its rejection, where it has not already been fully adopted.

The only negligence of the defendant revealed by the evidence was his failure to keep his cow out of the garden of the plaintiff’s son. To the latter, the defendant would certainly be liable for the harm done to the realty, but as he had no notice or knowledge of any vicious or ferocious propensity on the part of the animal, we do not think that he should be mulcted in damages for the unfortunate injury suffered by the plaintiff, nor, for that matter, even to the owner of the land, had such owner been injured in like manner. The appellant’s fifth point, asking the court to direct a verdict in his favor, should have been affirmed.

Porter, J., concurred in the dissenting opinion of Wickham, J.