Bischopp v. Cheney

• Decision Date: 21 December 1914
• Citation: 89 Conn. 1,92 A. 660
• Court: Connecticut Supreme Court
• Parties: BISCHOPP v. CHENEY et al.

92 A. 660

89 Conn. 1

BISCHOPP

v. CHENEY et al.

Supreme Court of Errors of Connecticut.

Dec. 21, 1914.

Appeal from Superior Court, New Haven County; William H. Williams, Judge.

Action by Teresa Bischoff, plaintiff, against G. Le Roy Cheney and others.Verdict for defendants.Plaintiff appeals.No error.

Isadore W. Resnik, Rocco Ierardi, and Charles J. Martin, all of New Haven, for appellant.

William B. Arvine, of New Haven, for appellees.

WHEELER, J.The complaint alleges that the defendant Cheney owned a large Angora cat (which he placed in the care of the defendant Woodcock), that the cat was possessed of vicious propensities of which the defendants had knowledge, and that the defendant Woodcock failed to properly confine the cat and negligently permitted it to go at large and onto the plaintiff's premises, where it bit her.The plaintiff construes the complaint as stating two causes of action: (1) That the defendants, with knowledge of its vicious propensities, kept the cat, and it came upon the plaintiff's premises and there bit her.As to this cause of action, she says the allegation that the defendants negligently restrained the cat was surplusage.(2) That the defendants negligently failed to restrain the cat, and as a consequence it came upon the plaintiff's premises and bit her.As to this cause she says the allegation of the vlclousness of the cat and the knowledge thereof of the defendants was surplusage.We incline to the view that the complaint states a single cause of action based upon the defendant's negligence in failing to properly restrain a cat which they knew to be vicious, and in permitting the cat to go at large and to trespass upon the premises of the plaintiff, where it bit her.The trial court was not in error in failing to charge the jury in relation to the plaintiff's so-called second cause of action.

Further, the evidence of facts before the jury affords no basis for a claim of negligent misconduct in the keeping or restraining of a cat which was not vicious.The record shows that: The plaintiff offered evidence to prove that the defendant Cheney owned a large Angora cat which he placed in the care of the defendant Woodcock; that both defendants had knowledge of the vicious propensity of the cat to bite; that the defendant Woodcock negligently permitted the cat to go at large and onto the plaintiff's premises, and while so trespassing the cat bit the plaintiff, who was at that time in the exercise of due care.The defendants offered evidence to prove that the cat did not possess the vicious propensity to bite, that the defendants did not have knowledge of such vicious propensity, that neither defendant was negligent, but that the biting was caused by the negligent misconduct of the plaintiff in respect to the cat.

The plaintiff requested the court to charge that if the jury found the cat was vicious and inclined to bite, and the defend ants had knowledge of its vicious propensities, they would be liable without proof of any negligence in the manner in which the cat was kept, and regardless of efforts made by them to restrain the cat so as to prevent its injury of others.Nothing in the record indicates that an Angora cat is, naturally, either inclined to mischief, or vicious.

This request must be equally applicable to every other domestic animal which, like the cat, has neither mischievous nor vicious propensities.If its theory be sound, then no matter how great the diligence of an owner, or how securely he restrain a domestic animal, and no matter in what way, or by what agency the animal escape, the owner will be liable if the animal have either mischievous or vicious propensities which are known by him.Under this rule, the owner of such a domestic animal keeps it, as he would an animal ferae naturæ at his peril.Many authorities so hold, and make the owner an insurer against damage by a mischievous or vicious domestic animal in the same way as against damage done by an animal feræ naturæ There are expressions in Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec. 175, which seem to sanction this doctrine, but at least since Baldwin v. Ensign, 49 Conn. 113, 44 Am. Rep. 205, if not always, our law has not adopted this harsh doctrine.With us negligence is the foundation of an action of this character.If one keeps a domestic animal having neither mischievous nor vicious propensities, he will not be liable if the animal trespass and do injury.Barnum v. Vandusen, 16 Conn. 200;Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec. 175;Van Etten v. Noyes, 128 App. Div. 406, 112 N. Y. Supp. 888; Thompson, Com. on Neg. §...