Decker v. Gammon

Davis, J. There are three classes of cases in which the owners of animals are liable for injuries done by them to the persons or the property of others. And in suits of such injuries the allegations and proofs must bo varied in each case, as the facts bring it within one or another of these classes. 1. The owner of wild beasts, or beasts that aro in their nature vicious, is, under all circumstances, liable for injuries-done by them. It is not necessary, in actions for injuries by such beasts, to allege or prove that the owner knew them to — 328 — be mischievous, for he is conclusively presumed to have such knowledge; or that he was guilty of negligence in permitting them to be at large, for he is bound to keep them in at his peril. “ Though the owner have no particular notice that he did any such thing before, yet if he be a beast that is ferae naturae, if he get loose and do harm to any person, the owner is liable to an action for the damage.” 1 Hale P. C., 430. “If they are such as are naturally mischievous in their kind, in which the owner has no valuable property, he shall answer for hurt done by them, without any notice; but if they are of a tame nature, there must be notice of the ill quality.” Holt, C. J. Mason v. Keeling, 12 Mod. R., 332. “ The owner of beasts that are ferae naturae must always keep them up, at his peril; and an action lies without notice of the quality of the beasts.” Rex v. Huggins, 2 Lord Raym., 1583. 2. If domestic animals, such as oxen and horses, injure any one, in person or property, if they are rightfully in the place where they do the mischief, the owner of such animals is not liable for such injury, unless he knew that they were accustomed to do mischief. And in suits for such injuries, such knowledge must be alleged, and proved. Eor unless the owner knew that the beast was vicious, he is not liable. If the owner had such knowledge he is liable. “ The gist of the action is the keeping of the animal after knowledge of its vicious propensities.” May v. Burdett, 58 Eng. C. L., 101. “ If the owner have knowledge of the quality of his beast, and it doth anybody hurt, he is chargeable in an action for it.” 1 Hale P. C., 430. “ An action lies not unless the owner knows of this quality.” Buxendin v. Sharp, 2 Salk., 662. “ If the owner puts a horse or an ox to grass in his field, and the horse or ox breaks the hedge, and runs into the highway, and gores or kicks some passenger, an action will — 329 — not lie against the owner unless he had notice that they had done such a thing before.” Mason v. Keeling, 12 Modern R., 332. “ If damage be done by any domestic animal, kept for use or convenience, the owner is not liable to an action on the ground of negligence, without proof that he know that the animal was accustomed to do mischief.” Vrooman v. Lawyer, 13 Johns. R., 339. 3. The owner of domestic animals, if they are wrongfully in the place where they do any mischief, is liable for it, though he had no notice that they had been accustomed to do so before. In cases of this kind the ground of the action is, that the animals were wrongfully in the place where the injury was done. And it is not necessary to allege or prove any knowledge on the part of the owner, that they had previously been vicious. “ If a bull break into an enclosure of a neighbor, and there gore a horse so that he die, his owner is liable in an action of trespass guare clausum fregit, in which the value of the horse would be the just measure of damages.” Dolph v. Ferris, 7 Watts & Searg. R., 367. “ If the owner of a horse suffers it to go at large in the streets of a populous city, he is answerable in an action on the case, for a personal injury done by it to an individual, without proof that he knew that the horse was vicious. The owner had no right to turn the horse loose in the streets.” Goodman v. Gay, 3 Harris R., 188. In this case the writ contained the allegation of knowledge on the part of the defendant; but the court held that it was not material, and need not be proved. The case before us is clearly within this class of cases last described. It is alleged in the writ that “ the plaintiff had a valuable horse which was peaceably and of right depasturing in his own close, and the defendant was possessed of another horse, vicious and unruly, which was running at large where of right he ought not to be; and being so unlawfully at — 330 — large, broke into tbe plaintiff’s close, and injured tbe plaintiff’s horse, &c.” It is also alleged that “ the vicious habits of the horse were well known to the defendantbut this allegation was not necessary, and may well be treated as surplusage. If the defendant had had a right to turn his horse upon the plaintiff’s close, it would have been otherwise. But if the horse was wrongfully there, the defendant was liable for any injury done by him, though he had no knowledge that the horse was vicious. The gravamen of the charge was, that the horse was wrongfully upon the plaintiff’s close; and this was what was put in issue by the plea of not guilty. f, Nor are these principles in conflict with the decision in the case of Van Lenven v. Lyke, 1 Comstock, 515. In that case the action was not sustained, because the declaration was not for trespass quare clausum, with the other injuries alleged by way of aggravation. But in that case there was no allegation that the animal was wrongfully upon the plaintiff’s close; or that the injury was committed upon the plaintiff’s Close. 4 Denio R., 127. And in the Court of Appeals it was expressly held, that “ if the plaintiff had stated in his declaration that the swine broke and entered his close, and there committed the injury complained of, and sustained his declaration by evidence, he would have been entitled to recover all the damages thus sustained.” 1 Corns., 515, 518. In the case before us, though the declaration is not technically for trespass quare clausum, it is distinctly alleged that the defendant’s horse, “being so unlawfully at large, broke and entered the plaintiff’s close, and injured the plaintiff’s horse,” which was there peaceably and of right depasturing. This was sufficient-; and the instruction given to the jury, “ that if the defendant’s horse, at the time of the injury, had escaped into the close, and was wrongfully there, and while there occasioned the injury, then the plaintiff would be entitled to recover,” was correct. And this being so, the instruction requested, “ that the plaintiff must prove, — 331 — in addition to other necessary facts, that the defendant’s horse was vicious, and that the defendant had knowledge of such viciousness prior to the time of the injury,” was properly refused. Exceptions overruled. Cutting, J., did not concur.