Emmons v. Stevane

• Decision Date: 12 November 1906
• Parties: EMMONS et al. v. STEVANE et al.
• Court: New Jersey Supreme Court

64 A. 1014

73 N.J.L. 349

EMMONS et al.

v. STEVANE et al.

Supreme Court of New Jersey.

Nov. 12, 1906.

Action by Ella Emmons and another against Albert Stevane and another. Verdict for plaintiffs. Rule to show cause why new trial should not be granted made absolute.

Argued June Term, 1906, before GUMMERE, C. J., and J. HENDRICKSON, J.

Gilbert Collins and Otto Horwitz, for the rule. Edmund Wilson, opposed.

GUMMERE, C. J. On the last day of September, 1902, the defendant Albert Stevane and his family were received as boarders by the plaintiff Mrs. Emmons, in her home at Asbury Park. Stevane took with him his two dogs, Nero and Rex, and paid Mrs. Emmons $5 per month for each dog. In December of that year Stevane and his family went south for the winter, leaving the two dogs in the care of Mrs. Emmons, under an agreement to continue the payment of $5 a month for each dog, so long as they remained in her charge. On the 23d day of January Mrs Emmons, who had gone to the front door of her home, found the dog Nero upon the porch, and spoke to him, at the same time placing her hand upon his head. The dog gave a yelp, sprang at her, and bit her severely, inflicting serious injuries upon her. She and her husband bring this suit against Stevane and his wife to recover compensation for the injuries so received, and for the pecuniary loss resulting from them. They rest their right to recover against both defendants upon two grounds, viz., first, that Mr. and Mrs. Stevane were joint owners of the dog, and knew that he was vicious, and accustomed to attack mankind; and, second, that at the time when they went to board with Mrs. Emmons, they, together, represented to her, for the purpose of inducing her to take the dogs into her family, that the animals were of a gentle and kindly disposition, although they well knew the contrary to be the fact. The trial resulted in a verdict against both defendants.

So far as the case against Mrs. Stevane is concerned, our examination of the proofs leads us to the conclusion that the verdict against her cannot be supported. The allegation that she was a joint owner of the dog was not attempted to be substantiated by any proofs offered at the trial, and the evidence produced on the part of the defense was plenary that Mr. Stevane was the sole owner of the animal. The plaintiffs' claim against her, as owner, therefore, fell to the ground. Nor did the proofs in the case justify the jury in finding her responsible for the injuries to Mrs. Emmons by reason of her representation that the dog was of a gentle and kindly disposition. Conceding, for the moment, that the proofs show the dog to have been a vicious one, and that Mrs. Stevane knew this to be the fact, her knowingly false statement (if she made it) with relation to his character, did not make her responsible to Mrs. Emmons for the injuries received by the latter. The only testimony with relation to...