Tanga v. Tanga, A--1116

• Decision Date: 05 January 1967
• Docket Number: No. A--1116,A--1116
• Citation: 226 A.2d 723,94 N.J.Super. 5
• Parties: Rosalie M. TANGA, individually and as guardian ad litem for Robert Tanga, etc., Plaintiffs-Appellants, v. Louis TANGA, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 5

94 N.J.Super. 5

226 A.2d 723

Rosalie M. TANGA, individually and as guardian ad litem for Robert Tanga, etc., Plaintiffs-Appellants, v. Louis TANGA, Defendant-Respondent.

No. A--1116.

Superior Court of New Jersey Appellate Division.

Argued Nov. 28, 1966.

Decided Jan. 5, 1967.

Myron J. Bromberg, Morristown, for appellants (Porzio, Bromberg & Newman, Morristown, attorneys).

Martin Newmark, Morristown, for respondent (George P. Helfrich, Chatham, attorney).

Before Judges CONFORD, FOLEY and LEONARD.

The opinion of the court was delivered by

CONFORD, S.J.A.D.

This case presents for the first time the necessity for an appellate court to squarely decide whether New Jersey's 'dog-bite' statute establishes a general rule of strict tort liability for injuries inflicted to another by the bite of one's dog. We hold that it does.

The statute, R.S. 4:19--16 (L.1933, c. 427), 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.'

In Foy v. Dayko, 82 N.J.Super. 8, 196 A.2d 535 (App.Div.1964), certification denied 41 N.J. 602, 198 A.2d 446 (1964), we had occasion to consider whether under this act contributory negligence of the victim barred recovery. We held that it did, whether or not the statute was otherwise construable as positing liability on fault or negligence though barring the previous defense of Non-scienter, rather than as creating strict liability regardless of the owner's fault. We refrained from decision of the latter question--that now confronting us--because the issue had not been adequately briefed or argued and was not essential for determination in deciding the issue as to contributory negligence. In Foy we thought the statute 'distressingly ambiguous on its face' (at p. 13).

More recently we described the statute as 'remedial legislation entitled to a liberal interpretation.' Gross v. Dunham, 91 N.J.Super. 519, 522, 221 A.2d 555, 557 (App.Div.1966).

The evidence at the trial here was as follows. The infant plaintiff, a child of eight, was bitten on the cheek by a cocker spaniel while a guest at the home of his uncle, owner of the dog. The boy testified that he was going to pet the dog when it jumped at him and bit him. The child's father gave testimony that defendant told him after the accident that the dog had had sore ears at the time. This was denied by defendant. The issue of contributory negligence was abandoned at trial.

The trial judge refused to permit plaintiffs' counsel in summation to tell the jury that the statute created strict liability without regard to negligence and charged the jury, in effect, that plaintiffs could not recover unless they showed negligence. The jury was instructed that the only effect of the statute was to relieve plaintiffs of the necessity of proving the viciousness of the animal and defendant's knowledge thereof. Adequate objection was made by plaintiffs to that portion of the charge. The jury returned a verdict of no cause of action; hence plaintiffs' appeal.

Ordinarily, in attempting to discern the meaning of an ambiguous statute, particularly in the area of the common law, it is useful to examine the pre-existing state of the law for clues as to the legislative conception of the 'mischief' in the prior law and the 'remedy' envisaged therefor through the new legislation. 50 Am.Jur. Statutes, § 305, p. 291; Pine v. Okzewski, 112 N.J.L. 429, 435, 170 A. 825 (E. & A.1934).

A mere reading of the statute denotes, at the least, legislative concern with the prior apparent barrier to recovery constituted by the dog owner's lack of knowledge (scienter) of any previous viciousness of the dog. Knowledge by owners or harborers of any vicious or injurious propensities of their domestic animals, like dogs, operated at common law to put such owners in the same liability category as keepers of wild or undomesticated animals, presumed to be harmful. Keepers of such animals were subject to strict liability to victims of injuries therefrom as insurers. Prosser on Torts (3d ed. 1964), pp. 513, 514; 2 Harper and James, Torts (1956), § 14.11, pp. 833--835; 3 C.J.S. Animals § 151, pp. 1256, 1257. There is an abundance of New Jersey cases recognizing these principles and the underlying rationale that Scienter of the dog's viciousness causes liability to rest on the mere harboring of the animal--not on negligence in its keeping and control. Emmons v. Stevane, 77 N.J.L. 570, 572, 73 A. 544, 24 L.R.A.,N.S., 458 (E. & A. 1909); Barber v. Hochstrasser, 136 N.J.L. 76, 79, 54 A.2d 458 (Sup.Ct.1947) (not affected by the statute because injury other than bite); Dranow v. Kolmar, 92 N.J.L. 114, 104 A. 650 (Sup.Ct.1918); see, apparently assuming the rule to be as stated and applying it without discussion, 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 (Sup.Ct.1893).

An aberrant note was introduced by the decision by the former Supreme Court, per Chief Justice Gummere, in DeGray v. Murray, 69 N.J.L. 458, 55 A. 237 (Sup.Ct.1903), which held that notwithstanding the owner's knowledge of his dog's viciousness he could not be held liable where he had exercised due care in confining the animal indoors but it had nevertheless broken out into the street. The basis for the decision was the court's outright disagreement (at pp. 460--461, 55 A. 237) with the leading British decision for liability as an insurer of an animal-owner with Scienter, May v. Burdett, 9 Q.B. (N.S.) 101, 115 Eng.Rep. 1213 (1846). But in Emmons v. Stevane, supra, the Court of Errors and Appeals reiterated the rule of liability as not proceeding on negligence but rather on the liability of the owner as an insurer, citing May v. Burdett, supra, and adding (77 N.J.L., at p. 572, 73 A., at p. 546) 'except Perhaps as modified by what was said in De Gray v. Murray' (emphasis added) but which the court found it 'unnecessary to consider' as the point in DeGray was not raised. In Eberling v. Mutillod, 90 N.J.L. 478, 101 A. 519 (E. & A. 1917), the court assumed the authority of DeGray but failed to find such exercise of control over the dog by the owner (at p. 480, 101 A. 519) as to preclude the application in the particular case of the ordinary rule of strict liability where there was Scienter. In Backhofen v. Blumetti, 1 N.J.Misc. 11 (Sup.Ct.1923), DeGray was squarely endorsed. But in Justice Heher's opinion in Barber v. Hochstrasser, supra, a comprehensive review of the law, there is no citation of the DeGray case or reference to the defense of due care but rather a restatement in classic terms of the rule of liability as an insurer for the keeping of domestic animals known to be vicious, citing Emmons v. Stevane, supra (136 N.J.L., at p. 79, 54 A.2d 458). ¹

Passing from the question of negligence as an essential prerequisite to liability to that of negligence as an independent basis for liability at common law irrespective of Scienter, we find the latter principle well established. 2 Harper and James, op. cit., at p. 837; Prosser, op. cit., at p. 516; 3 C.J.S. Animals § 149, p. 1252. There is no reported New Jersey case expressly applying the rule of negligence to hold liable a dog possessor without Scienter, nor any denying the subsistence in this State of the general rule in that context. References to the general rule are found in Angus v. Radin, 5 N.J.L. 957, 958--959 (Sup.Ct.1820), and Healey v. P. Ballantine & Sons, 66 N.J.L. 339, 342, 49 A. 511 (Sup.Ct.1901) (applying the rule to the situation of a horse being led on a sidewalk). Reported instances elsewhere of application of the rule as against dog owners lacking Scienter are rare. ² But there is no reason to doubt that there might have been common-law liability in negligence for injury inflicted by an ordinarily temperate dog upon a house guest because of irritability of the dog due to temporary illness known to the owner and not to the guest (compare the testimony in the instant case).

With this background as to the law preexisting the statute, we approach the construction of the statute in relation to the precise issue here presented. Although the statute obviously eliminates the factor of the owner's ignorance of the viciousness, if any, of his dog, as a basis for exculpation from liability, is the establishment by the plaintiff of the negligence of the owner a surviving prerequisite for liability?

In the light of the analysis we have made of the statute hereinafter it will make no difference whether or not we accept DeGray v. Murray, supra, as authoritative of the law of this State when the 1933 statute was adopted.

In two reported cases New Jersey judges have in Dicta stated or assumed the statute calls for absolute liability upon the occurrence of the statutory conditions. Rowland v. Wunderlich, 113 N.J.L. 223, 226, 174 A. 168 (Sup.Ct.1934) (Case, J.), and Prentiss v. National Airlines, 112 F.Supp. 306, 311, n. 11 (D.C.N.J.1953) (Hartshorne, J.). As noted, we contemplated but did not resolve the problem in Foy v. Dayko, supra, but did decide that the Legislature did not intend to permit recovery where the plaintiff was contributorily negligent. The bar of contributory negligence is not incompatible with the concept of...