Emmons v. Stevane

• Decision Date: 28 June 1909
• Citation: 77 N.J.L. 570,73 A. 544
• Parties: EMMONS et al. v. STEVANE et ux.
• Court: New Jersey Supreme Court

73 A. 544

77 N.J.L. 570

EMMONS et al.

v. STEVANE et ux.

Court of Errors and Appeals of New Jersey.

June 28, 1909.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Ella Emmons and another against Albert Stevane and wife. Judgment for defendants (73 N. J. Law, 349, 64 Atl. 1014), and plaintiffs bring error. Reversed.

Samuel A. Patterson and Edmund Wilson, for plaintiffs in error. McDermott & Enright, Gilbert Collins, and Otto Horwitz, for defendants in error.

VOORHEES, J. This action is brought by Ella Emmons and John G. Emmons, her husband, against Albert Stevane and Ida F. Stevane, his wife. Mrs. Emmons, one of the plaintiffs, on the 23d day of January, 1003, was severely bitten by the defandant's dog, Nero. The circumstances were these: She went to the door of her house and found the dog lying on the porch. She spoke to him and placed her hand on his head, when, without warning, the dog yelped, jumped at her, and bit her severely about the throat. Mr. Stevane and his wife in September preceding had gone to board at the home of Mrs. Emmons in Asbury Park. Two Irish setter dogs, Nero and Rex, were brought with them, Mrs. Emmons being paid $5 per month board for each dog. The Stevanes boarded with the Emmons family until December following. when, upon leaving to go south upon a trip, they arranged that the dogs should remain in the care of Mrs. Emmons, and agreed to continue to pay $5 per month for each dog so long as they remained. The trial judge directed the jury to find a verdict for the defendants. That direction is brought under review by this writ of error.

The declaration alleges ownership of the dog in both defendants. The first two counts are framed on allegations that the dog was known to the defendants to be vicious, and to have attacked and bitten mankind. The third count alleges that the defendants requested the plaintiffs to accept the dog to board, representing that he was of a gentle disposition, and that Mrs. Emmons, believing such to be the case, agreed to board him, while in truth the defendants well knew the dog to be savage and vicious. As to Mrs. Stevane's responsibility we are satisfied with the disposition made by the Supreme Court of that aspect of the case under the facts as then presented wherein it was held that there was no liability on the part of Mrs. Stevane. Emmons v. Stevane, 73 N. J. Law, 349, 64 Atl. 1014. On the trial evidence was given that the dog had jumped for, growled, and showed his teeth in several instances to strangers. There was also evidence tending to show that some of these instances had come to the knowledge of Mr. Stevane. One witness testified as follows: "We was speaking about the dog, and I told him (Stevane) about the dog jumping for me, and he said he was a vicious dog and he knew it, and he didn't like him, and if it wasn't for his wife he wouldn't keep the dog." The defendants offered evidence that the dog was gentle and affectionate with his friends, a pet of everybody, and was playful with children.

At common law the keeper of animals of the class feræ naturse was presumed to have knowledge of their vicious propensities and was liable as an insurer. May v. Burdick, 9 Ad. & El. N. S. 101; Smith v. Pelah, 2 Strange, 1264; Hale's Pleas of the Crown, 430, part 1, c. 33. But in the case of animals which had been domesticated, a presumption arose that they were not of a vicious nature, and hence their keeper was liable only in case the animal was vicious and he had knowledge of its vicious propensities. The action against the harborer did not proceed upon negligence, but if he had knowledge of the vicious nature of the animal he was liable as an insurer, the gravamen of the injury being the wrong of keeping the animal with the knowledge of its viciousness, and hence it was essential that the master's knowledge should be averred and proved. May v. Burdick, supra; Thompson's Commentaries on Negligence, §§ 839-844; Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec. 175; Smith v. Donohue, 49 N. J. Law, 548, 10 Atl. 150, 60 Am. Rep. 652. And of like import are the decisions in this state (Gladstone v. Brinkhurst, 70 N. J. 'Law, 130, 56 Atl. 142), except perhaps as modified by what was said in De Gray v. Murray, 69 N. J. Law, 458, 55 Atl. 237, but which it is here unnecessary to consider, as the direct point decided in that case is not raised in ...