Liberman v. Drill

• Decision Date: 14 June 1920
• Citation: 110 A. 694
• Parties: LIBERMAN et al. v. DRILL.
• Court: New Jersey Supreme Court

110 A. 694

LIBERMAN et al.

v. DRILL.

Supreme Court of New Jersey.

June 14, 1920.

Action by David Liberman, by next friend, and others against Harry Drill. Judgment for plaintiffs and defendant appeals. Affirmed.

Argued February term, 1920, before the CHIEF JUSTICE and MINTURN and BLACK, JJ.

Philip J. Schotland, of Newark, for appellant.

Benjamin M. Weinberg, of Newark, for appellees.

MINTURN, J. Before the defendant purchased the horse in question a general acquaintance, named Saperstein, who had long driven horses, seeing the horse hitched up to defendant's wagon, in charge of Sam Drill, his son, warned him that the horse would be a "kicker and bucker," and had some other defects which would make him undesirable as an investment, and among these "that he was a crazy horse; nobody wanted to have him; he started to kick." "That horse," said he, "is going to go lame in warm weather, and he is a kicker; he is a crazy horse; he wouldn't stand still; he will run away once in a while; he is shy on a train or on an automobile." Notwithstanding this generous advice to his agent, based upon actual knowledge, defendant purchased the horse, and about three weeks after the purchase this accident happened. The plaintiff, a boy of 19 years, testified that he was helping defendant's son, Sam, deliver furniture, and while the horse was walking along the street drawing the furniture wagon, with plaintiff and defendant's son seated thereon, this unusual situation presented itself:

"He (Sam) wanted the horse to go a little faster, and he said, 'Get up.'" As if desirous of obeying the injunction literally, "the horse turned around, and all of a sudden he jumped all the way up, and he started kicking; and he (Sam) let go of the lines, and the horse kept on kicking until some fellow came over and grabbed him; he made about 12 or 13 kicks. He almost broke the wagon."

Saperstein's predictions, based upon his previous knowledge, were evidently verified, if the jury credited this testimony, for quite manifestly the horse was true to the reputation accorded him. Incidentally during this manifestation the plaintiff was the recipient of one of the kicks and suffered injuries therefrom which presents the basis of this suit for damages.

The case went to the jury upon this evidence of scienter, and the jury found for the plaintiffs. The denial of a motion to nonsuit and a motion to direct a verdict upon the ground that there was no substantial basis for a verdict for plaintiffs, based upon, the doctrine of scienter, presents the substantial ground of this appeal. The communication to the son, who evidently was the alter ego of the father in the control and management of the horse and wagon, both before the purchase of the horse, and thereafter, was upon familiar principles, notice to the defendant "Qui facit per aliun facit per se." Congress Co. v. Edgar, 99 U. S. 645, 25 L. Ed. 487.

The substantial inquiry, therefore, is whether defendant at the time of the accident was chargeable with knowledge of the kicking propensity of the horse, and whether there was sufficient in the warnings conveyed by Saperstein to charge the defendant with knowledge of this vice under the doctrine of scienter.

In Emmons v. Stevane, 77 N. J. Law, 570, 73 Atl. 544, 24 L. R. A. (N. S.) 458, 18 Ann. Cas. 812, Mr. Justice Voorhees, speaking for the Court of Errors and Appeals, declared that in this character of tort feasance—

"It is not necessary that the same injury should have actually been committed by the animal to the knowledge of its owner, but knowledge by the owner that the disposition of the animal is such that it is likely to commit a similar injury to that complained of, is sufficient to maintain the action."

And it is therein further declared that where "the proof to establish viciousness and scienter consists of instances tending, more or less clearly, to indicate such a disposition and such knowledge, a jury question at once arises."

This statement of the legal principle underlying the doctrine is fortified by the adjudged cases as well as by the discussions of the text-writers upon the subject.

In an early common-law case, Lord Kenyon declared that if by common report a dog has been bitten by a mad dog, "it becomes the duty of the owner of the dog so reported to have been bitten to be very circumspect" in the keeping of it. Whether the dog said to be mad was mad or not may be a mere matter of suspicion, and yet it is not enough for a defendant to say, "I did use a certain precaution.' He ought to put it out of the animal's power to do further mischief." Jones v. Perry, 1 Esp. 483; Woolf v. Chalker, 31 Conn. 121,...