State v. McDermott
| Court | United States State Supreme Court (New Jersey) |
| Writing for the Court | PARKER, J. |
| Citation | 49 N.J.L. 163,6 A. 653 |
| Parties | STATE (EVANS, Prosecutor) v. MCDERMOTT. |
| Decision Date | 10 November 1886 |
49 N.J.L. 163
STATE (EVANS, Prosecutor)
v.
MCDERMOTT.
Supreme Court of New Jersey.
November 10, 1886.
(Syllabus by the Court.)
On certiorari. Opinion gives the facts.
Mr. Niven, for prosecutor.
Daly & Fleming, contra.
PARKER, J. An action was brought in the Hoboken district court by John McDermott against Samuel Evans, the prosecutor, to recover damages occasioned by the bite of a dog. It was proved that McDermott, at the time he was bitten, was in the saloon kept by the prosecutor as a place of public resort; that the prosecutor was the owner and possessor of the dog; that in going from the billiard-room to the bar-room of the saloon, McDermott met the dog in the passage-way; that he put out his hand to motion the dog out of the passage-way he was obstructing when the dog growled, and bit him on the hand. McDermott swore that about
a month after he was bitten his hand broke out from the effect of the bite; that he became nervous, lost sleep, and suffered pain; that he employed a physician, paid for medicines, lost two or three weeks' wages, and was out of pocket in money about $25. Dr. Pinder, a practicing physician, swore that, about the time McDermott's hand broke out, he was consulted professionally; that he made an examination of the hand, and prescribed for the injury. He said that he found the skin broken, the hand considerably inflamed and swollen, and that it appeared to him to be a pretty bad hand. The witness added that hydrophobia might possibly result from such a wound, but that he did not apprehend such result in this case.
At the close of the plaintiff's evidence, the counsel for the defendant moved to nonsuit on the ground that it did not appear that the dog had bitten McDermott maliciously, and also on the ground that there was no proof that the dog had bitten other persons except in play, or that the defendant had knowledge of the propensity of the dog to bite. The judge refused to nonsuit. In charging the jury, the judge said:
"Some time ago a girl was bitten by a dog in this state. The case was carried to the supreme court, and a judge there held the owner of the dog liable for an injury committed by the dog, if he had notice of his mischievous propensity; and this is the law which applies to this case."
Upon request to charge, the judge held, in substance, as he had ruled on the motion to nonsuit. The jury found for McDermott in the sum of $300 damages.
When the plaintiff rested, there was evidence of the propensity of the dog to bite, and that the defendant knew of it before McDermott was bitten. But it is said, on the part of the prosecutor, that although several persons had been bitten by the dog, of which he had information, yet it appeared that in every instance the biting occurred while the dog was in a playful mood; and it is argued that damages cannot be recovered where it is...
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DeRobertis by DeRobertis v. Randazzo
...by playful, as well as mean, dogs. Jannuzzelli v. Wilkens, 158 N.J.Super. 36, 41-42, 385 A.2d 322 (App.Div.1978); Evans v. McDermott, 49 N.J.L. 163, 164, 6 A. 653 (Sup.Ct.1886); see W. Prosser, The Law of Torts § 76 at 501 (4th ed. 1971). Generally, upon a showing of Page 151 scienter, an o......
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Tanga v. Tanga, No. A--1116
...Gladstone v. Brinkhurst, 70 N.J.L. 130, 56 A. 142 (Sup.Ct.1903); Perkins v. Mossman, 44 N.J.L. 579 (Sup.Ct.1882); Evans v. McDermott, 49 N.J.L. 163, 6 A. 653 (Sup.Ct.1886); Roehers v. Remhoff, 55 N.J.L. 475, 26 A. 860 An aberrant note was introduced by the decision by the former Supreme Cou......
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Clark v. Brings, No. 41289
...Hill v. Moseley, 220 N.C. 485, 489, 17 S.E.2d 676, 678; Crowley [284 Minn. 83] v. Groonell, 73 Vt. 45, 50 A. 546; Evans v. McDermott, 49 N.J.L. 163, 6 A. 653. But many of these incidents of scratching would seem necessarily to be excused as provoked, under the rule discussed Supra; in any e......
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Jannuzzelli v. Wilkins
...Stevane, 77 N.J.L. 570, 572, 73 A. 544 (E. & A. 1909); cf. Dranow v. Kolmar, 92 N.J.L. 114, 104 A. 650 (Sup.Ct.1918); Evans v. McDermott, 49 N.J.L. 163, 6 A. 653 (Sup.Ct.1886). Knowledge by an owner of his dog's overly demonstrative affection or playfulness, with a propensity for enthusiast......
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DeRobertis by DeRobertis v. Randazzo
...by playful, as well as mean, dogs. Jannuzzelli v. Wilkens, 158 N.J.Super. 36, 41-42, 385 A.2d 322 (App.Div.1978); Evans v. McDermott, 49 N.J.L. 163, 164, 6 A. 653 (Sup.Ct.1886); see W. Prosser, The Law of Torts § 76 at 501 (4th ed. 1971). Generally, upon a showing of Page 151 scienter, an o......
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Tanga v. Tanga, No. A--1116
...Gladstone v. Brinkhurst, 70 N.J.L. 130, 56 A. 142 (Sup.Ct.1903); Perkins v. Mossman, 44 N.J.L. 579 (Sup.Ct.1882); Evans v. McDermott, 49 N.J.L. 163, 6 A. 653 (Sup.Ct.1886); Roehers v. Remhoff, 55 N.J.L. 475, 26 A. 860 An aberrant note was introduced by the decision by the former Supreme Cou......
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Clark v. Brings, No. 41289
...Hill v. Moseley, 220 N.C. 485, 489, 17 S.E.2d 676, 678; Crowley [284 Minn. 83] v. Groonell, 73 Vt. 45, 50 A. 546; Evans v. McDermott, 49 N.J.L. 163, 6 A. 653. But many of these incidents of scratching would seem necessarily to be excused as provoked, under the rule discussed Supra; in any e......
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Jannuzzelli v. Wilkins
...77 N.J.L. 570, 572, 73 A. 544 (E. & A. 1909); cf. Dranow v. Kolmar, 92 N.J.L. 114, 104 A. 650 (Sup.Ct.1918); Evans v. McDermott, 49 N.J.L. 163, 6 A. 653 (Sup.Ct.1886). Knowledge by an owner of his dog's overly demonstrative affection or playfulness, with a propensity for enthusiasticall......