Barber v. Et Ux.

• Decision Date: 29 July 1947
• Docket Number: No. 21.,21.
• Citation: 54 A.2d 458,136 N.J.L. 76
• Parties: BARBER et al. v. HOCHSTRASSER et ux.
• Court: New Jersey Supreme Court

136 N.J.L. 76

54 A.2d 458

BARBER et al.

v.HOCHSTRASSER et ux.

No. 21.

Supreme Court of New Jersey.

July 29, 1947.

Action by Meldra Barber and Charles W. Barber, her husband, against Anton Hochstrasser and Theresa Hochstrasser for injuries when plaintiff, Meldra Barber, was felled by a dog which accompanied defendant Theresa Hochstrasser. From a judgment against both defendants, Anton Hochstrasser appeals.

Judgment affirmed.

Appeal from Court of Common Pleas, Hudson County.

October term, 1946, before CASE, C. J., and HEHER and COLIE, JJ.

Burke, Sheridan & Hourigan, of Union City (John H. Sheridan, of Union City, of counsel), for appellants.

Morris Edelstein, of Jersey City (Alfred Brenner, of Bayonne, of counsel), for respondents.

HEHER, Justice.

Plaintiff, Meldra Barber, while walking her Collie and Airedale dog under leash on a public street in Union City, was struck and felled by a dog which accompanied the defendant, Theresa Hochstrasser, also a pedestrian; and she seeks damages for the resulting injury. The plaintiff's husband, Charles W., sues per quod. The gravamen of the complaint is joint and several ownership, control and harboring of the animal by Theresa Hochstrasser and her husband, Anton, with knowledge that it had vicious propensities. Anton was not present when the mishap occurred.

The jury empanelled to try the issue awarded damages against both defendants. Only Anton appeals from the consequent judgment.

The local registration of the dog was in the name of Theresa as owner; and she testified that it was ‘maintained or kept’ in the home of herself and her husband, and ‘was cared for’ by both and sustained out of an allowance granted by the husband for household expenses. She referred to it as her dog. Anton disclaimed ownership of the animal. He said that he ‘supposed’ his son, Anthony, owned it; but Anthony was married at the time and had resided elsewhere with his family for some four years prior thereto. The dog had been harbored in the home of Anton and his wife from the time it was acquired, and registered annually from that domicile. They held the real estate as tenants by the entirety. There was evidence that the animal had vicious propensities to the knowledge of Theresa. Anton denied he had such knowledge. The case is not within the terms of R.S. 4:19-16, N.J.S.A.

It is assigned for error that the judge instructed the jury that if they found Theresa had knowledge of ‘the vicious or mischievous propensities' of the dog prior to the happening, and that it ‘was harbored in the home’ of Anton, he (Anton) ‘would be chargeable with the knowledge possessed by his wife and * * * would in such instance be liable’ for the injuries sustained by plaintiffs; and, again, that if ‘the dog was harbored in the home’ of Anton, ‘you may impute knowledge or notice which the wife had against the husband.’

The question is essentially one of agency. The knowledge of the wife is imputable to her husband only if acquired by her while acting as his agent in relation to matters within the scope of her authority. It is elementary that the relationship of principal and agent must subsist to charge the one with notice received by the other. By statute, a husband is not responsible for his wife's torts, ‘except in cases where he would be jointly responsible with her if the marriage did not exist.’ R.S. 37:2-8, N.J.S.A. Thus, he is liable for the tortious acts of his wife committed as his agent, but not otherwise, barring the participation which would make him a joint tort-feasor. At common law, the keeper of an animal of the class ferae naturae is presumed to have knowledge of its vicious propensities, and is liable as an insurer for injuries inflicted by it; but in the case of an animal domitae naturae, there is a presumption of a non-vicious nature, and its keeper is liable for its depredations, again as an insurer, only in case it was in fact vicious and he had knowledge of its vicious inclinations. The gravamen of the cause of action in this event is not negligence, but rather the wrongful keeping of the animal with knowledge of its viciousness; and thus both viciousness and scienter are indispensible elements to be averred and proved. Emmons v. Stevane, 77 N.J.L. 570, 73 A. 544, 24 L.R.A.,N.S., 458, 18 Ann.Cas. 812. One not the owner of a vicious dog may be liable as its keeper, if he is in fact such and has knowledge of its vicious disposition; and one may also be responsible as a joint owner or keeper of such an animal, if he has notice of its vicious qualities. And a husband and wife may bear this relationship to one another. A husband may jointly with his wife keep or harbor a vicious dog within the household; and he is liable as such for injury inflicted by the animal, if he had knowledge of its vicious tendencies. Of course, all this is subject to the modification of the rule effected to R.S. 4:19-16, N.J.S.A., supra, not pertinent here.

This is not necessarily to say that a wife is jointly liable with her husband for the injuries occasioned by an animal of this class simply because it was kept and maintained by her husband in the household. Emmons v. Stevane, 73 N.J.L. 349, 64 A. 1014, affirmed on this point 77 N.J.L. 570, 73 A. 544, 24 L.R.A.,N.S., 458, 18 Ann.Cas. 812. But see Quilty v. Battie, 135 N.Y. 201, 32 N.E. 47, 17 L.R.A. 521. Yet the husband, as the head of the family, in possession and control of the family abode, may be liable as the keeper of the animal, even though it is owned by his wife or other member of the family, if he suffers it to be kept upon the premises and thereby affords it a place of refuge and protection, certainly so if he cares for and exercises a measure of control over it as a family appendage, and thus keeps and harbors it jointly with his wife. The essence of the action is not ownership, but the keeping and harboring of an animal, knowing it to be vicious. One who keeps a...