Dranow v. Kolmar

• Decision Date: 23 September 1918
• Citation: 104 A. 650
• Parties: DRANOW et al. v. KOLMAR.
• Court: New Jersey Supreme Court

104 A. 650

DRANOW et al.

v. KOLMAR.

Supreme Court of New Jersey.

Sept. 23, 1918.

Action by Harry Dranow, by Louis Dranow, his next friend, and Louis Dranow, against Adolph Kolmar. On plaintiff's rule to show cause why the verdict should not be set aside and a new trial granted. Verdict set aside, and new trial ordered.

Argued February term, 1918, before GUMMERE, C. J., and PARKER and KALISCH, JJ.

Queen & Stout, of Jersey City, for plaintiffs.

Voigt & Otto, of Newark, for defendant.

KALISCH, J. The plaintiff,a ">lad ten years of age, was bitten in the cheek by defendant's dog. He brought an action, by his father, as next friend, against the defendant to recover damages for the injury sustained from the dog bite, in which action his father also joined, asa ">plaintiff, to recover the sums of money expended by him for medical attendance upon and for medicines furnished his son. The jury rendered a verdict for the defendant. The case is now before us on the plaintiff's rule to show cause why the verdict should not be set aside and a new trial granted, as being against the clear weight of the evidence, contrary to law, errors in the charge of the court, and because of the refusal of the trial judge to charge certain requests submitted to be charged by plaintiffs' counsel.

The undisputed facts in the case appear to be: (1) That the defendant's dog, a fox terrier, bit Harry, the plaintiff, without any provocation; (2) that the defendant's dog had bitten another boy previously, and defendant knew it.

The defendant claimed that he was not chargeable with knowledge of any vicious propensity in the dog to bite mankind, by reason of the information which he possessed, that his dog had on a prior occasion bitten a boy, because his information was that at the time when the biting occurred his dog was sitting on the front stoop of a house when the boy, in passing by, said "gr-r-r," and put his hand out toward the dog, whereupon the dog leaped to the ground and then jumped upon the boy and bit him in the cheek, and that this conduct of the animal was not a manifestation of a vicious propensity to bite, but a natural act under the then existing circumstances. Even conceding that it was a natural act, it was no less an exhibition of a mischievous propensity, and was notice to the owner of that evil trait. Therefore the admission of the defendant that he possessed the information of the behavior of the animal on that occasion was, in substance, an admission of knowledge of the dog's mischievous propensity.

In Evans v. McDermott, 49 N. J. Law, 163, 6 Atl. 653, 60 Am. Rep. 602, the defense relied on was that, though the dog had bitten several persons of which the owner had information, yet, since it appeared that in every instance the biting occurred while the dog was in a playful mood, therefore no damages could be recovered where it is shown that the dog had a propensity to bite only in play; but that to justify a recovery it must appear that the dog was in the habit of biting mankind while in angry mood, actuated by a ferocious spirit. Mr. Justice Joel Parker, speaking for the court, in an opinion replete with sound sense and observation, at page 164 of 49 N. J. Law, at page 654 of 6 Atl. (60 Am. Rep. 602), says: "This is not the law. An action can be maintained against the owner by a party injured upon...