Swain v. Tillett

• Decision Date: 20 January 1967
• Docket Number: No. 32,32
• Parties: Rosalind Hayman SWAIN v. Elizabeth H. TILLETT, Administratrix of the Estate of Herman A. Tillett, Elizabeth H. Tillett, Individually, and Radford Tillett.
• Court: North Carolina Supreme Court

Page 297

152 S.E.2d 297

269 N.C. 46

Rosalind Hayman SWAIN v. Elizabeth H. TILLETT, Administratrix of the Estate of Herman A. Tillett, Elizabeth H. Tillett, Individually and Radford Tillett.

No. 32.

Supreme Court of North Carolina.

Jan. 20, 1967.

Aydlett & White and Frank B. Aycock, Jr., Elizabeth City, for plaintiff.

Russell E. Twiford and John H. Hall, Elizabeth City, for defendants.

SHARP, Justice.

Defendants assign as error the failure of the court to sustain their respective motions for nonsuit. Radford Tillett contends that he has no responsibility for the deer's actions because he was not its owner. Mrs. Tillett contends that she has no liability since there is no evidence tending to show that she had any knowledge that the deer had developed any dangerous propensities. These contentions must be assayed against the following applicable principles of law:

'Certain animals ferae naturae may be domesticated to such an extent as to be classed, in respect of the liability of the owner for injuries they commit, with tame or domestic animals. * * * Thus, deer are subject to such substantial domestication as to come within this principle.' 4 Am.Jur.2d, Animals § 83 (1962); 2 Kent, Commentaries 349 (1884). (The case was tried upon the theory that the Tillett deer was a tame deer, a domesticated animal.) To recover for injuries inflicted by a domesticated animal, Domitae naturae, plaintiff must allege and prove: '(1) that the animal was dangerous, vicious, mischievous, or ferocious, or one termed in law as possessing a vicious propensity; and (2) that the Owner or Keeper knew or should have known of the animal's vicious propensity, character, and habits.' (Emphasis added.) Sellers v. Morris, 233 N.C. 560, 561, 64 S.E.2d 662, 663; Plumidies v. Smith, 222 N.C. 326, 22 S.E.2d 713; Hill v. Moseley, 220 N.C. 485, 17 S.E.2d 676. See also Sink v. Moore and Hall v. Moore, 267 N.C. 344, 148 S.E.2d 265. 'The gravamen of the cause of action in this event is not negligence, but rather the wrongful keeping of the animal with knowledge of its viciousness; and thus both viciousness and scienter are indispensible elements to be averred and proved.' Barber v. Hochstrasser, 136 N.J.L. 76, 79, 54 A.2d 458, 460; 2 Strong, N.C. Nindex, Animals § 2 (1959).

The owner of an animal is the person to whom it belongs. The keeper is one who, either with or without the owner's permission, undertakes to manage, control, or care for the animal as owners in general are accustomed to do. 4 Am.Jur.2d, Animals § 92 (1962); 3 C.J.S. Animals § 165(b) (1936). It is apparent that a keeper may or may not be its owner. Janssen v. Voss, 189 Wis. 222, 207 N.W. 279. 'The word 'keep,' as applied to animals, has a peculiar signification. It means 'to tend; to feed; to pasture; to board; to maintain; to supply with necessaries of life. " Allen v. Ham, 63 Me. 532, 536. To keep implies 'the exercise of a substantial number of the incidents of ownership by one who, though not the owner, assumes to act in his stead.' Raymond v. Bujold, 89 N.H. 380, 382, 199 A. 91, 92. Accord, Lanna v. Konen, 119 Conn. 646, 178 A. 425.

At the time plaintiff was injured, Herman Tillett had been dead ten months, lacking three days. Although the record is silent as to the status of his estate, we assume that its administration had not then been completed. Pending the administration, title to the deer was in his administratrix, Mrs. Tillett. Spivey v. Godfrey, 258 N.C. 676, 129 S.E.2d 253. Plaintiff sued her both in her representative and individual capacity. Had the administration been completed, nothing else appearing, defendants would have owned the deer jointly. G.S. § 29--14(1). However, liability for injuries inflicted by animals, Ferae naturae or Domitae naturae, does not depend upon the ownership of the animal. "The essence of the action is not ownership, but the keeping and harboring of an animal, knowing it to be vicious.' * * * Thus, the responsibility to respond in damages depends not upon who has legal title to the (animal) but rather upon the possessor of the animal.' Hunt v. Hazen, 197 Or. 637, 639, 254 P.2d 210, 211. The Keeper of an animal with known vicious propensities, nothing else appearing, is liable for injuries inflicted by it upon another. 3 C.J.S. Animals § 165 (1936).

The testimony of Radford Tillett (quoted in the statement of facts) is sufficient to establish that he and his mother were joint keepers of the deer. As the only child of a deceased father, he dutifully went every day to the old home to do for his widowed mother those things which needed to be done. Inter alia, he kept a watchful eye on the deer and the ponies. Sometimes he fed the deer; sometimes his children and Mrs. Tillett fed it. It was 'a family appendage,' cherished all the more because it had belonged to the deceased husband and father. Indubitably, it gave his grandchildren much pleasure and was of great interest to them. Radford spoke of it either as 'our deer' or 'my deer.' He said, 'We permitted the deer to live in the pasture as a whole after my father's death. * * *' When Billy Gray gave Radford plaintiff's meassage about a week before she was injured, he went immediately to investigate without mentioning the matter to his mother. He testified that when he found the deer where it was supposed to be, he 'turned around and went on back home and never thought any more about it.' After plaintiff was hurt, it was Radford who reported the matter to the Wildlife Protector. He said, 'I called Mr. Forbes and told him that I had been notified that it was my deer' in the accident. It was Radford who put the deer in the inner stockade upon Mr. Forbes' instructions. In short, Radford assumed responsibility for the deer. He was, in both the ordinary and legal sense of the words, one of its two joint keepers. He and his mother exercised joint control over it. See Lanna v. Konen, supra.

Plaintiff's evidence was sufficient to establish that, a week before the accident, Radford had been notified that the deer had attacked her. 'The rule is that as soon as the owner knows or has good reason to believe that the animal is likely to do mischief, he must take care of him; it makes no difference whether this ground of suspicion arises from one act or from repeated acts. Cockerham v. Nixon, 33 N.C. 269, 270. This rule is equally applicable to a keeper. The motion for nonsuit as to Radford, therefore, was properly overruled.

As to Mrs. Tillett, there is no evidence that she herself ever received any notice that the family's 'tame deer' and developed vicious propensities. The ruling upon her individual motion for nonsuit depends upon whether notice to Radford was notice to her. The general rule is that notice of an animal's vicious propensities 'to one joint keeper is notice to all such keepers.' 4 Am.Jur.2d, Animals § 91 (1962). Accord, 3 C.J.S. Animals § 148(d)(2) (1936). In Barber v. Hochstrasser, supra, the defendants, husband and wife, jointly kept a dog which, to the Wife's knowledge, had vicious propensities. The court held both liable, saying: 'The custody of a vicious animal * * * is the custody of all joint keepers; and they are all jointly liable for the damage done by it. And, by the same reasoning, notice to one joint keeper is notice to all such.' Id. 54 A.2d at 461. In Hayes et al. v. Smith, 15 Ohio Cir.Ct.R. 300, in holding the defendants liable to the plaintiff for injuries inflicted by a vicious dog, the court said:

'(W)e are of opinion that notice to one of the joint owners of the vicious propensities of an animal which is being kept and harbored jointly by them is notice to all, and, coming to consider the verdict upon the evidence, we do so with this rule in mind and giving it effect.' Id. at 324.

It is generally held that notice to the wife of the vicious propensities of a dog which she and her husband kept jointly at their home is notice to the husband. Perazzo v. Ortega, 32 Ariz. 154, 256 P. 503; Smith v. Royer, 181 Cal. 165, 183 P. 660; Ayers v. Macoughtry, 29 Okl. 399, 117 P. 1088, 37 L.R.A.,N.S., 865; Benke v. Stepp, 199 Okl. 119, 184 P.2d 615; Halm v. Madison, 65 Wash. 588, 188 P. 755.

The knowledge required to hold the owner of an animal, possessed of vicious characteristics, responsible for injuries inflicted on another, need not be intimate personal knowledge. 'Scienter may be sufficiently established by proof of knowledge on the part of those to whose care and management animals are intrusted as such knowledge is in law imputable to the owner.' Benke v. Stepp, supra, 199 Okl. at 123, 184 P.2d at 619. Furthermore, notice to an agent, within the scope of his employment, is notice to the principal.

'Knowledge of the agent in reference to the matters of his agency, is the knowledge of his principal. This is a general principle in law, and applies to the owner of a vicious animal which he has committed to the care, control and agency of another, as well as to other matters in which an agent is employed.' Corliss v. Smith, 53 Vt. 532, 535.

Accord, Gooding v. Chutes Co., 155 Cal. 620, 102 P. 819, 23 L.R.A.,N.S., 1071 (defendant's camel, known to its employee to be vicious, bit plaintiff; defendant held liable); Barber v. Hochstrasser, supra; Liberman v. Drill, 94 N.J.L. 387, 110 A. 694 (notice to son, who drove father's wagon, that horse was vicious; held, notice to the father); Benke v. Stepp, supra; Harris v. Carstens Packing Co., 43 Wash. 647, 86 P. 1125, 6 L.R.A.,N.S., 1164 (knowledge of driver of a vicious range steer imputed to defendant-owner).

In Stapleton v. Butensky, 188 App.Div. 237, 177 N.Y.S. 18, defendant was held liable for injuries inflicted by his horse since 'the jury was warranted in inferring that a horse thus manifesting this vicious propensity would also manifest it about the stable and on the occasions when he was under the observation of the owners or their servants, and that in the exercise of proper care they would have discovered...