Foy v. Dayko

• Decision Date: 07 January 1964
• Docket Number: No. A--1071,A--1071
• Citation: 82 N.J.Super. 8,196 A.2d 535
• Parties: Thomas FOY, Plaintiff-Respondent, v. Daniel DAYKO and Julia Dayko, individually and t/a Sea Horse Tavern, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 8

82 N.J.Super. 8

196 A.2d 535

Thomas FOY, Plaintiff-Respondent, v. Daniel DAYKO and Julia Dayko, individually and t/a Sea Horse Tavern, Defendants-Appellants.

No. A--1071.

Superior Court of New Jersey Appellate Division.

Argued Nov. 18, 1963.

Decided Jan. 7, 1964.

A. Henry Giordano, Long Branch, for appellants.

Maurice B. McLaughlin, Jersey City, for respondent.

Before Judges CONFORD, FREUND and SULLIVAN.

The opinion of the court was delivered by

CONFORD, S.J.A.D.

This case presents the novel question whether provocation or contributory negligence are defenses to an action for a dog bite under the modification of the commonlaw rule resulting from the enactment by L.1933, c. 427 of what became R.S. 4:19--16, N.J.S.A. In the present case the plaintiff recovered a jury verdict of $7,000 after the trial court declined to charge contributory negligence. Defendants appeal.

The facts here were sharply controverted. Plaintiff's version was as follows. At about 12:45 A.M. of the night of July 24--25, 1960, he went to the tavern conducted by defendants to get some beer. He took along a dog owned by his uncle, but left the animal outside the premises. Entrance to the tavern was Via a closed, screened-in porch, which was not lighted except indirectly from the interior bar area. As plaintiff stepped into the porch he was 'jumped' by a dog owned by defendants which bit his lip and posterior before someone came and pulled the dog off him.

The testimony of defendant Daniel Dayko, supported in part by that of his wife and a customer, was dramatically different. The porch was well lighted, and on its outside there hung a sign, 'Please, no dogs allowed.' Daniel Dayko from inside the tavern saw plaintiff approach the door and shouted at him that he could not enter with the dog. Plaintiff said he only wanted some beer, but Dayko repeated the warning. The plaintiff nevertheless entered the porch with his dog, whereupon defendants' dog came forward and barked. Plaintiff, in Dayko's language, began 'making motions, grr, grr, grr, grr * * * he was aggravating those dogs.' The dogs then got into a fight, plaintiff attempted to separate them, and he was scratched in the process, according to Dayko, by plaintiff's own animal.

The pretrial order specifically sets forth provocation and contributory negligence as defenses. The trial court denied a written request to charge the jury submitted by defendants, reading, in part, that if the jury found that 'plaintiff attempted to separate or provoked the dogs' they might 'determine that the plaintiff in so doing was guilty of contributory negligence and is not entitled to recover damages.' In instructing the jury the trial court gave no charge relative to the legal consequences of any finding of provocation or negligence on the part of plaintiff. When called upon for objections to the charge as given, defendants' counsel stated: 'I have no objection to the charge * * * The only objection I have, your Honor, is the question of contributory negligence; that the defendant was not--.' At that point the judge broke in: I don't think negligence is in the case,' and directed that the court officers be sworn.

The only questions raised on this appeal are the refusal to charge provocation and contributory negligence and the denial of a new trial sought on the grounds the verdict was against the weight of the evidence and that the verdict was excessive. We need only consider the first point.

R.S. 4:19--16, N.J.S.A. reads as follows:

'The owner of any dog which shall bite a person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness.

For the purpose of this section, a person is lawfully upon the private property of such owner when he is on the property in the performance of any duty imposed upon him by the laws of this state or the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner thereof.'

Our decisions prior to the adoption of the statute reflect some contrariety of view as to the common-law basis for dog bite liability. In Emmons v. Stevane, 77 N.J.L. 570, 73 A. 544, 24 L.R.A. (N.S.) 458 (E. & A.1909), the rule of liability for injury inflicted by a domestic animal known to its owner to have a vicious disposition was found to stem from the absolute common-law liability for the acts of wild animals kept by an owner. 'The action against the harborer did not proceed upon negligence' but on the theory that knowledge of the vicious nature of the animal made the owner liable as an insurer. Id., 77 N.J.L. at p. 572, 73 A. at p. 545, 24 L.R.A. (N.S.) 458. Absent such knowledge, there was no liability for the injury inflicted by a dog at all. The court in Emmons referred to the possible modification of the doctrine in DeGray v. Murray, 69 N.J.L. 458, 55 A. 237 (Sup.Ct. 1903), wherein it was held that there was only a duty of due care on the part of an owner who knew of the vicious propensities of his dog, but the court in Emmons deemed the matter not necessary of resolution in that case on its facts. 77 N.J.L., at p. 572, 73 A. at p. 545.

In Eberling v. Mutillod, 90 N.J.L. 478, 101 A. 519 (E. & A. 1917), however, the Court of Errors and Appeals plainly moved in the direction of adoption of the theory of negligence as the basis for the action when it distinguished, but without any suggestion of disapproval of the reasoning in, DeGray v. Murray, supra. Squarely standing on the negligence theory, moreover, is Backhofen v. Blumetti, 1 N.J.Misc. 11 (Sup.Ct. 1923), which held that since the action rested on ngeligence, contributory negligence was a proper defense. It may fairly be concluded that this was the posture in which the law stood when the 1933 act was adopted.

Plaintiff contends that the statute reads in terms absolutely conclusive of liability upon the occurrence of the stated conditions, i.e., the biting by the defendant's dog of a person lawfully on defendant's premises. He argues, first, that the absence of any qualification of liability in the statutory language for the defenses of contributory negligence or provocation precludes any implication thereof by construction; and, second, that since the predicate of liability is no longer negligence, but the statutory conditions, there is no rationale for the survival. of contributory negligence as a defense. Defendants respond that the statute indicates on its face that its only purpose was the elimination of the absolute defense of absence of Scienter and that it is therefore to be presumed that it was intended that common-law rules of liability in all other respects, including the availability of the defense of contributory negligence, were to continue in effect.

It is a fairly debatable question whether this argument by defendants, not developed to any extent in their brief, is valid in respect of the implied corollary that the basis for liability even under the statute continues to consist...