Eberling v. Mutillod

• Decision Date: 19 July 1917
• Citation: 90 N.J.Law 478,101 A. 519
• Parties: EBERLING v. MUTILLOD (two cases).
• Court: New Jersey Supreme Court

101 A. 519

90 N.J.Law 478

EBERLING

v. MUTILLOD (two cases).

Court of Errors and Appeals of New Jersey.

July 19, 1917.

(Syllabus by the Court.)

Appeal from Circuit Court, Hudson County.

Actions by Emil Eberling, by Rudolph Eberling, his next friend, and by Rudolph Eberling, against Marius Mutillod. From judgments for the several plaintiffs, defendant appeals. Affirmed.

Frederick K. Hopkins, of Hoboken, for appellant. Harlan Besson, of Hoboken, for appellees.

WALKER, Ch. These eases arose out of injuries resulting to a boy from being bitten by a dog. They were tried together before a jury, and were argued together here. In the first action, the plaintiff, Emil Eberling, a minor, sued by his father as next friend, and in the other action the father sued for himself. In March, 1915, the plaintiff, Emil Eberling, was employed in delivering newspapers, afternoons. He was a boy 16 years old. Two verdicts were rendered, one for the boy of $400, and one for his father for $23.50, against the defendant, Marius Mutillod, in the Hudson county circuit court, by a jury, and judgments were thereupon entered. The defendant has appealed to this court.

The plaintiff, Emil Eberling, was a newsboy living in the borough of Secaucus with his father, from whom he had not been emancipated. The defendant, Marius Mutillod, was a florist, owning an estate in the borough of Secaucus, Hudson county. He was the owner of a large St. Bernard dog, which he permitted to run at large on his property. It was established that his dog had attacked a man named Fred Montigel, when the defendant, its owner, was present, some time before, and ruined a pair of trousers, for which the defendant paid. There was also testimony that the dog had bitten another man, who had told the owner of it. It appeared from the testimony that it was the custom of the newsboy plaintiff to enter the gate in the northern part of Mr. Mutillod's property and cross the lawn to one of the houses situate on his estate. On March 13, 1915, while delivering papers to Mr. Mutillod's tenants, the boy was attacked by the defendant's dog, which was roaming at large upon the latter's estate. The dog bit the boy several times in the hip. The bites were severe, and he required the care of a doctor for some time.

The defendant's land was only partially inclosed by a fence, in which there were large gates, which were open most of the time, and in that situation the defendant's dog was permitted by him to run at large on the premises. The boy entered through an open gate at the time he was bitten. Defendant's counsel moved to nonsuit at the end of plaintiff's case, and for a direction of a verdict at the close of the testimony, both of which motions were denied, and the cases were submitted to the jury, who found for the plaintiffs, as stated. These are the only grounds of appeal.

It is perfectly obvious that the defendant appellant is not entitled to a reversal of the judgments. The reason is that there was evidence to support them, and this court will not review the findings of fact in a court below, beyond ascertaining that there was evidence to support such findings. Lamed v. MacCarthy, 85 N. J. Law, 589, 90 AO. 272. The plaintiffs, under the facts in this case, were entitled to go to a jury if they showed (1) that the defendant owned the dog; (2) if the boy was bitten by the dog and injured; (3) if the defendant knew that the dog had previously bitten other people. There was testimony establishing defendant's liability and the plaintiff's right to recover on all of these grounds. Ownership of the dog was admitted by defendant.

Counsel for appellant relies upon De Gray v. Murray, 69 N. J. Law, 458, 55 Atl. 237; but in our judgment the doctrine in that case is not applicable to the one at bar. It was there held that the owner of a vicious dog will not be liable for injury inflicted by it, if it escapes from control, where the owner has exercised a degree of care commensurate with the danger to others which would follow from such an escape. That is not this case. The owner here failed to control the dog. He appears to have regarded it, or at least to have treated it, as being docile, and not vicious.

The appellant contends that the infant plaintiff was not upon his premises by invitation or license, but as a...