State v. Donohue

• Decision Date: 22 June 1887
• Parties: STATE ex rel. SMITH v. DONOHUE.
• Court: New Jersey Supreme Court

10 A. 150

49 N.J.L. 548

STATE ex rel. SMITH

v. DONOHUE.

Supreme Court of New Jersey.

June 22, 1887.

(Syllabus by the Court.)

J. W. & J. K. Field, for plaintiff. C. F. Lighthipe, for defendant.

VAN SYCKEL, J. In July, 1885, the plaintiff, while walking in the public street in front of the defendant's premises, was bitten by the defendant's dog, which was lying unmuzzled on the sidewalk. The night being dark, the plaintiff did not see the dog until he sprung upon her and bit her. It also appears that a city ordinance prohibited the running at large of dogs in the street at any time without a muzzle. The plaintiff insists that the dog, lying upon the sidewalk in violation of the city ordinance, must be regarded as a nuisance, and that, therefore, the owner is liable for any injury done by him.

Under the authority of Durant v. Palmer, 29 N. J. Law, 544, it may be that if the plaintiff, while on her way in the public street, had unavoidably fallen over the dog, and injured herself, the owner of the clog would be liable in damages for such injury. But whether he is liable for damage inflicted by the biting of the dog must depend, I think, upon the existence of the necessity of proving the scienter. The fact that the defendant acted in breach of the city ordinance subjects him only to the penalty prescribed therefor. It is not a circumstance upon which recovery in this suit can be supported.

The only question in the case is whether this suit will be without proof that the defendant had knowledge of the vicious propensity of the dog. The rule has generally prevailed in the English courts that, if an animal having no natural propensity to be vicious commits an injury, the owner is not liable unless he has knowledge of his disposition.

In Mason v. Keeling, 12 Mod. 332, Lord Holt said that the law takes notice that a dog is not of fierce nature, but rather the contrary, and he therefore sustained the demurrer to the plaintiff's declaration because it did not allege the scienter.

In Beck v. Dyson, 4 Camp. 198, Lord Ellenborough directed a nonsuit because the evidence was not sufficient to warrant the jury in inferring that the defendant knew the dog was accustomed to bite. In a like ease, Lord ABINGEE nonsuited because it did not appear that the owner had knowledge of the vicious propensity of his dog. Hogan v. Sharpe, 7 Car. & P, 755.

In Buxentine v. Sharp, 3 Salk. 12, the reporter says: "The plaintiff declared that the defendant kept a bull which used to run at men, but did not say sciens or scienter; and this was adjudged ill after a verdict, because the action will not lie unless the owner knew the quality of his bull, and it cannot be intended that this was proved at the trial because the plaintiff is not bound to prove more than is laid in his declaration."

Cox v. Burbidge, 13 C. B. (N. S.) 430, was a case where the defendant's horse, being on a highway, kicked the plaintiff, a child playing there. There was no evidence to show how the horse came on the highway, or that he was accustomed to kick. The plaintiff obtained a verdict, whereupon the defendant was granted a rule nisi to enter a nonsuit. Chief Justice ERLE, with whom all the judges agreed, said: "Even if there was negligence on the part of the owner of the horse, I do not see how that is at all connected with the damage of which the plaintiff complains. It appears that the horse was on the highway, and that, without anything to account for it, he struck out and injured the plaintiff. I take the well-known distinction to apply here, that the owner of an animal is answerable for any damage done by it, provided it be of such a nature as is likely to arise from such an animal, and the owner knows it. Thus, in the case of a dog, if he bites a man or worries sheep, and his owner knows he is accustomed to bite men or to worry sheep, the owner is responsible, but the party injured has no remedy unless the scienter can be proved. This is very familiar doctrine. The owner of a horse must be taken to know that a horse will stray if not properly secured, and may find its way into his neighbor's corn or pasture. For a trespass of that kind the owner is, of course, responsible. But, if a horse does something which his owner has no reason to expect him to do, ...