Francis H. (Francis Hermann) Bohlen.

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We consider, then, that the common law gave the plaintiff his
election to pursue either the owner or agister, at his pleasure, or to
seize the cattle damage feasant, intending to afford a threefold rem-
edy for an injury so easily committed.

While there is an apparent hardship in subjecting a person to
the action of trespass, where the cause arises from the neglect of

^Accord: MouUon v. Moore. 56 Vt. 700 (1884) ; Teivkeshury v. Bucklin.
7 N H 518 (1835). So where by the terms of a fencing act, "an owner
of cattle is made liable for the damage done when the plaintiff's fence is
sufficient, "it seems reasonable that anyone to whom the use and care and
control of cattle are confided, should be responsible for damage by them
done; and that such is the spirit of the law; and that he ought, therefore.
to be' deemed the owner." Daggett, J., Smith v. Jaques, 6 Conn. 530 (1828).



532 HARTFORD V. BRADY

another, yet we cannot overlook the necessity of the checks which
are required to guard against tliis species of trespass, which is not
only so easily committed, but is so difficult to prevent. And we
think our ancestors intended to give an ample remedy, by subjecting
the owner, the agent or bailee, and the offending animals themselves,
to making good the damages thus committed. Nor does the hard-
ship appear so great, when we consider that the owner has his remedy
against the person whom he employs, and if he does not obtain satis-
faction for his loss, it is rather he who employed a negligent person
that should suffer, than the man who is injured by such neglect.-



HARTFORD v. BRADY.
Supreme Judicial Court of Massachusetts, 1874. 114 Mass. 466.

\l Devens, J. : Inasmuch as the highways have been set apart,

among other things, that cattle may be driven thereon, and as, from
the nature of such animals, it is impossible, even with care, to keep
them upon the highways unless the adjoining land is properly
fenced, it has been settled that the owner of un fenc ed lands upon
s uch w ays-cannot seize as damage feasant, or sustain an action for
e mjury caused by, cattle that wander thereupon, if reasonable

— earg^ Has been used in driving them along the highway, or if thev
\\f\.\e. so escaped, having been properly managed, if reasonable effort /
has bee n made to remove them. Stack pole v. Healy, 16 Mass. 33,
and cases cited. Lyman v. Gipson, 18 Pick. 422. Little v. Lathrop,
5 Greenl. 356. Lord v. Worrmvood, 29 Maine, 282. Avery v. Max-
well, 4 N. H. 36. Mills V. Stark, 4 N. H. 512. Dovaston v. Payne,^
2 H. Bl. 527. Goodwyn v. Cheveley, 4 H. & N. 631.



*This is so where the place of agistment is owned by the agister as in
the prmcipal case, Stafford v. Ingersol, 3 Hill, N. Y. 38, 1842, accord; or
is the property of the owner of the cattle and farmed by the agister on
shares, Marsh v. Hand, 120 N. Y. 315 (1890), or leased by the owner to
the agister or bailee, Blaisdell v. Stone, 60 N. H. 507 (1881), in which Doe,
C. J., says, p. 509: "It may be reasonably necessary that the risk of entrust-
ing cattle to an irresponsible bailee, should so rest in their owner as not to
deprive injured third persons of the benefit of a common law action."

In Ativater v. Lowe, 39 Hun (N. Y.), 150 (1856), a distinction is drawn
between the owner's liability for the trespasses of his cattle while in the cus-
tody of an agister, or bailee, when the owner remains constructively in posses-
sion and his liability for the trespass of those in the possession of a lessee
when the owner's interest in the cattle is parted with for the term of the
lease. See also Marsh v. Hand, et at., supra, and compare with this 2 Rolle /
(1868), 553, pi. 20-25, where it is said that, "If any servant without my
knowledge drive my cattle upon the land of another, my servant is the
trespasser and not I, because by driving the cattle there of his own will
without my consent he gains a special property for the time, and so for
that purpose they are his cattle. But it seems that if my wife drives them
on another's land, I myself become a trespasser, for the wife cannot gain
a property of me, 12 Hy. T., Keil. 36.

Contra: Rossell v. Cottom, 31 Pa. 525 (1858), where it was held that
the agister is alone liable, Thompson, J., saying : "It is not the ownership
of the trespassing creature, but the possession and use, that raises the
liabilitv"; Reddick v. Newburn, 76 Mo. 423 (1882); Eck v. Hockcr. 75 II!.
App. 641 (1897).



BURTON V. MOOR HEAD 533

In the present case, the count of the declaration on which the
plaintiff relied was one charging the defendant with so neg ligently
driving t he cattle along t he public higfiwaynear the plaintifif's close,
tfi'at^yTeason thereof thev broke and entered such close and did
the damage complained of." But the question whether there was
any negligence in the manner in which the cattle were driven along
the highway was not put to the jury by the learned judge. He ruled
that if, while the cattle wptp^pW dfiven by Hovt and his assi stants,
they escaped fromJikj;flnIrQlIa44d broke a n rl-entered^He plain tifTs^
close, and trampled and_de stroyed his crops there growing, the de-
fendant was iralSTT'therefon This instructiorr-appafently asewneS"
that the cattir-^mefecrmFo the land of the plaintiff directly from
the highway. As the case finds that they did not pass through my
fence, it is erroneous, because it makes the defendant responsibly
even if the cattle were in all respects properly managed and attended I
while travelling on the highway, and if having escaped while so
managed and attended into the plaintiff's land, every reasonable effort
was made to remove them and prevent damage.' ^^

(b) Damage other than trespass upon real property.
BURTON V. MOORHEAD.

Scottish Court of Session, 1881. 8 Rettie. 892..

In December, 1880, Thomas Campbell Burton, professor of
dancing, Glasgow, presented a petition in the Sheriff Court there
against Robert Moorhead, commission agent, Glasgow, concluding
for damages to the extent of £150 in respect of injuries alleged to
have been inflicted on him by a dog belonging to the defender.

On January 27, 1881, the Sherift'-substitute (Lees), pronounced
the following interlocutor:— "Finds that on 29th May, 1880, the
pursuer was passing along a private road leading past the defend-
er's house to the water-works, in course of constmction for the
burgh of Paisley, and that said road led near a kennel, at which

^Accord: Erdman v. Gottshall. 9 Pa. Sup. Ct. 295 (1899^; Rightmire
V. Shcpard. 12 N. Y. Supp. 800 fiPgO ; Wood v. Snider, 187 N. Y. 28
(1907), scmble; Bourchier v. Mitchell. 17 Vict. L. R. 27 (1891) ; but see
20 Ed. IV, 10 b., cited in note to Read v. Edwards, 17 C. B. N. S. 244, i,.
251, "Littleton. If a common road lies over the land of divers men. and
if a drover comes with his beasts and some of them go out of the way,
he shall be punished in an action of trespass." Nor is one dnvmg caule - ^

through the streets of a town liable in the absence of negligence for their j U^
escape into abutting premises. Xillett v. Ward, L. R. 10 Q. B. D. 17 ^^^-)-^, _ ^ '

But this immunity is only enjoyed as an mciaent to tne use ot the '""gti-;vl^*^ -
way for purposes of travel thereon, Dovaston v. Payne, see above; so one'->^>^0_^
grazing his cattle upon the public highway is answerable to the owner of a ^/T^JT^
close adjoining it into which it escapes, though it be by reason of the insuffi- V^jt>^
ciency of fences which such owner was bound to maintain, Avery v. Max- ^.f^ff^
well, and Stackpole v. Healy, see above; but see Lord v. Wormwood, 29

Me.'282 (i849>- , , . • u j

In those States which hold that under a fencmg act an owner is hound
to fence against cattle "lawfully" upon the adjoining premises, cattle, which
escape into such adjacent premises while being carefully driven along a
highway on which it abuts, are not "lawfully" thereon. Wood v. Snider, 187
N Y. 28 (1907); McDonnell v. R. R., 115 Mass. 594 (1874)-



534 BURTON V. MOORIIEAD

there was chained a retriever dog belonging to the defender, and kept
by him there as a watch-dog: Finds that the said dog was of a most
savage character, and that it had bitten several people, and that the
defender had been put on his guard as to its propensity to attack
, people : Finds that in these circumstances it was incumbent on
him to take all proper precautions for the safety of people having
occasion to pass along said road : Finds that the precautions adopted
by the defender were, that the dog was secured by a chain attached
at one end to its collar, and at the other to a ring passing through
a staple driven into the ground : Finds that on the occasion in ques-
tion the dog sprang so violently towards the pursuer that one of the
links of its chain snapped, whereon it rushed on the pursuer and
bit him severely: Finds that the said chain had been in use for two
years, had been bought as a new chain, and as being of sufficient
strength to restrain the dog, that apparently to the eye it was suffi-
cient for this purpose, and that it has never before nor since 29th
May given way: Finds, therefore, that the precautions taken by the
defender were reasonably sufficient : Finds, in these circumstances,
as matter of law, that the defender is not responsible to the pur-
suer for the injuries he has sustained through the unexpected frac-
ture of the dog's chain: Therefore assoilzies the defender from the
conclusions of the action, and decerns."

The pursuer appealed to the Sheriff (Clark), who, on 5th April,
1881, pronounced an interlocutor recalling the judgment of the
Sheriff-substitute, on the ground that the occurrence took place
through the failure of the defender to provide a chain sufficiently
strong for the purpose intended, and assessing the damages at £50.

The defender appealed to the Court of Session.

Lord Justice-Clerk. — There are two grounds on which the
Sheriff's judgment is assailed, first, that the pursuer had no right to
be where he was, and that, therefore, the obligation of the owner of
the dog was not so strong as it would otherwise have been, and
second, that the owner took all reasonable precautions to restrain
this dog, and that the chain having broken from unsuspected causes,
he was discharged from all responsibility. In regard to the first
ground, I do not think that the evidence bears out the contention.

The second question is more important, and if the liability oi
the defender depended on his having taken reasonable precautions
to restrain the dog I should think that he had very good grounds to
prevail.

But that view depends, I think, on a misapprehension of the
true principle of his duty. It seems agreed that where an owner of
a dog has no reason to suppose that it is ferocious the mere fact
that it has turned out to be so would not make him liable for any-
ih'ing it has done; the dog has in fact the privilege of one worry.
J}y t when the ferocity of the dog is quite well known to the owner
his obligation is not on e of reasona ble rare, but not to keep the dog
'aFall, unless he does it in such a way as to make it perfecdx_securj£,_
ThT"distinction is most clear, and therefore the owner of the dog
keeps it entirely at his own risk. He does not undertake that he
will restrain the animal, but he must restrain, and, if he does not,



BURTON V. MOORHEAD 535

he will be responsible for its acts. The following passage in Lord
Hale's Pleas of the Crown shews the distinction clearly, for under
the old English law what will save a man from a criminal prosecu-
tion will not save him from a civil action of damages. He says, —
"li a man have a beast, as a bull, cow, horse, or dog, used to hurt
people, if the owner know not his quality he is not punishable, but
if the owner be acquainted with his quality, and keeps him not u"?]
from doing harm, and the beast kills a man, by the ancient Jewish
law the owner was to die for it. ... H the owner have notice
of the quality of his beast, and it doth anybody hurt, he is charge-
able with an action for it. Though he have no particular notice that
lie did any such thing before, yet if it be a beast that is fercr naturcc,
as a lion, a bear, a wolf, yea even an ape or monkey, if he geti
loose and do harm to any person, the owner is liable to an action for
the damage, and so I knew it adjudged in Andrew Baker's case.
whose child was bit by a monkey that broke his chain and got loose.
And therefore in case of such a wild beast, or in case of a bull or
cow that doth damage where the owner knows of it, he must at
his peril keep him up safe from doing hurt, for though he use his
diligence to keep him up, if he escapes and do harm the owner is
liable to answer damages.^ But as to the point of felony, if the
owner have notice of the quality of the ox, &c., and use all due
diligence to keep him up, yet the ox breaks loose and kills a man, f
this is no felony in the owner, but the ox is a deodan d. But if he v^
did not use that due diligence, but through negligence the beast goes ^
abroad, after w?,rning or notice of his condition, and kills a man,
I think it is manslaughter in the owner."

That precisely covers the case here, and brings out the distinc-
tion clearly between a man doing what is lawful in a neglectful
manner, and a man doing what is unlawful, except on the condition
of taking all the risk on himself.

Lord Young. — I entirely concur; and I think the case is very
important. The Sheriff-substitute finds as a matter of fact "that the
said dog was of a most savage character, and that it had bitten
several people;" and the Sheriff finds that the dog was "a powerful
and ferocious dog." Now, there is no necessity for a man to keep
an animal of this kind — dangerous to human beings; there is no
more necessity for him to keep it than there is to keep a wild animal.
He may lawfully keep it, but he keeps it at his own risk; he is not
only bound and obliged to use diligence, or, as the Sheriff-substitute
says, "to take precautions which are reasonably sufficient" to restrain
the dog; but the risk shall be entirely his, and the precautions he

^Accord: May v. Burdett, 9 Ad. and E. N. S. (Q. B.) 101 0846), in
which it was held that a declaration need not allege, in addition to the de-
fendant s knowledge of tiie vicious character of the animal (in this case, a
monkey), any negligence in failing to properly secure it; Lord Denman say-
ing, p. Ill, "The gist of the action is keeping the animal after knowledge of
its mischievous propensities"; Card v. Case, 5 C. B. (M. G. and S.) 622
('S48): Jackson v. Smithsou, 15 M. and W. 562 (1846); Mann v. U'eiand.
Gl* Pa. 243 (1875); Muller v. McKesson, et a!., 73 N. Y. 195 (1878), and
:.ises therein.

In Muller v. McKesson, 73 N. Y. 195 (1878), Church. C. J., says. p. 200:
' l;i some of the cases it is said that from the vicious propensity and knowl-



236 BURTON v. MOORHEAD

edge of the owner negligence zcill be presumed, and in others that the owner
is prima facie liable. This language does not mean that the presumption or
prima facie case may be rebutted by proof of any amount of care on the
part of the owner in keeping or restraining the animal. This presumption
of negligence, if it can be said to arise at all, so as to be in any way material
in a case where the owner is absolutely bound at his own peril to prevent
mischief is a presumptio juris et de jure, against which no averment or proof
is receivable. It is not a presumption in the ordinary sense of the word,
raising a prima facie case which may be rebutted." Card v. Case, 5 C. B.
(M. G. and S.) 622. p. 623 (1848), note b. "Since the owner's liability is
based on his keeping an animal known to be vicious, if his servant be injured
it is no defense that through the negligence of a fellow servant it was allowed
to get loose." MuUer v. McKesson, 11 N. Y. 195 (1878).

If the animal be domesticated (mansuetae naturae), knowledge of its
vicious disposition must be alleged in the declaration and proved by evidence,
Buxenden v. Sharp, 2 Salk. 662 (1709); Mason v. Keeling, 12 ^lod., 332
(1799); Papplewell v. Pierce, 10 Cush. (Mass.) 509 (1852); and Reynolds
V. Hussev. 64 X. H. 64 (1886) ; Mann v. Weiand, 81* Pa. 243 (1875).

If the animal be foerce naturcc such allegation is unnecessary. Spring
Co. V. Edgar, 99 U. S. 645 (1878), Hayes v. Miller, 150 Ala. 621 (1907j, and
though such knowledge is often alleged in the declaration. May v. Burdett,
such statement in the declaration "must be taken to be proved, as every one
knows that such animals as lions and bears are of a savage nature," Besozsi
v. Harris, 1 F. and F. 92 (1858), p. 93.

As to whether the defendant's scienter can be shown by proof that a
servant or agent knew of the animal's ferocious nature, see Twigg v. Ryland,
62 Md. 380 (1884), and Gooding v. Chutes Co., 1 55 Cal. 620 (1909).

One voluntarily and knowingly keeping and harbormg an animal known
by him to be ferocious, is liable for harm done by it, though not its owner,
Quilty V. Battie, 135 N. Y. 201 (1892), married woman held liable for in-
juries done by vicious dog, kept by her husband, with her knowledge and
consent, upon premises which were her separate property; Frammell v. Little,
16 Ind. 251 (1861), bailee of vicious heifer, held liable for injuries done by
her; Snyder v. Patterson, 161 Pa. St. 98 (1894), owner of premises held Hable
for injuries done by a dog which he had allowed his nephew, who lived with
him, to keep therein; Haves v. Smith, 62 Ohio St. 161 (1900); and see
Twigg v. Ryland, 62 Md. 380 (1884).

Where, however, the defendant is required by law to keep wild or vicious
animals he is not liable unless he is guilty of negligent custody, Jackson v.
Baker, 24 D. C, App. Cases 100 (1904), keeper of Government Zoological
Garden held not liable for injuries done by the beasts kept therein. As to
whether a common carrier is in the absence of negligence liable for the
injuries done bv wild animals in its charge for transportation, see Malloy v.
Starin, 191 N. Y. 21 (1907).

An owner who has hired or lent a useful animal to another is not liable
for its misconduct while out of his possession, even though he knew it was
vicious when he parted with it, Bell v. Leslie, 24 Mo. 661 (1887) ; but quaere,
as to owner of tierce wild beasts so out of possession.

In many states statutes have been passed greatly enlarging the liability
of the owners or keepers of dogs for injuries done outside the premises of
such owner or keeper, for which see Cooley on Torts, 3rd Ed., 408, n. 65.
These statutes, which differ greatly, unite in dispensing with the necessity of
proving that the defendant knew of the dog's mischievous propensities, Kerr
V. O'Connor, 63 Pa. St. 341 (1869); Le Forest v. Tolman, 117 Mass. 109
(1875). Under many, as Massachusetts, Michigan, New Hampshire, Ohio
and Rhode Island, double damages may be recovered. Some make the owner
or keeper liable only for injury to sheep, Kerr v. O'Connor, 63 Pa. St. 341
(1869); Osincup v. Nichols, 49 Barb. (N. Y.) 145 (1868), or others' cattle,
as in the English Dogs Act of 1865, 284, 29 Vict. c. 60. An owner is liable
for all the injuries done by his dog jointly with the dog of another owner.
Kerr V. O'Connor, 63 Pa. St. 341 (1869); Remele v. Donahue, 54 Vt. 555
(1882); McAdams v. Sutton, 24 Ohio St. ZZi (1873), as to whether joint
action against both owners will lie, compare Kerr v. O'Connor, 63 Pa. St.
341 (1869), with Adams v. Hall, 2 Vt. 9 (1829).



FILBURN V. people's PALACE & AQUARIUM CO. 537

takes must be effectual. If they are not, the owner is respon-
sible. That is the law, and it is well set forth in the passage
from Hales Pleas of the Crown your Lordship has quoted, if
it be a wild animal, or an ordinary domestic animal which is dan-
gerous to human beings, the keeper shall not discharge himself of
his obligation by using diligence, which in fact turned out to be
ineffectual. It is different when there is a criminal cjuestion in the
matter, and not merely one of damages, for when a man is sought
to be made criminally responsible, then the question of reasonable
diligence will be entertained. I concur in all the findings of the
Sheriff-substitute as summarised by the Sheriff', with the exception
of the finding as to the reasonably sufficient precautions. I think the
precautions must be effectual, and not only reasonably sufficient,
in the sense that though they were not effectual the owner was mor
ally excusable. The reason of our judgment is that ineffectual pre
cautions are no defence to an action for injuries done to a person,
where he lawfully was, by a ferocious animal.

Lord Craig hill concurred.

The Court pronounced the following interlocutor: — "Find that
the dog in question was ferocious and dangerous, and known to be
so by the appellant (defender) : Find that the dog was kept on the
chain, but that this chain was insufficient to render the dog secure,
and that the chain broke, and the dog getting loose, bit the respondent
(pursuer) severely: Find that the respondent was where he was
entitled to be at the time of this occurrence: Therefore dismiss the
appeal, approve the judgment of the Sheriff appealed against, and
decern."



y



Platt, B., in Jackson v. Smithson, 15 Meeson and Welsby, 562
(1846), at p. 565: "No doubt a man has a right to keep an animal
which is ferce naturcu, and nobody has a right to interfere with him
in so doing, until some mischief happens; but as soon as the animal
has done an injury to any person, then the act of keeping it becomes,
as regards that person, an act for which the owner is responsible."^



FILBURN V. THE PEOPLE'S PALACE AND AQUARIUM

COMPANY, LIMITED.

Court of Appeals, 1890. L. R. 25 Q. B. D., 258.

Appeal from a judgment of Day, J.

The action was brought to recover damages for injuries sus-
tained by the plaintiff by his being attacked by an elephant, which
was the property of the defendants, and was being exhibited by
them. The learned judge left three questions to the jury: whether
the elephant was an animal dangerous to man ; whether the defeiul-
ant knew the elephant to be dangerous; and whether the plaintiff
brought the attack on himself. The jury answered all three ques-
tions in the negative. The learned judge entered judgment for the
plaintiff for a sum agreed upon in case the plaintiff should be
entitled to recover.

The defendants appealed.

"Compare with this the language of the court in U'oolf v. Chalker, 31
Conn., 121 (T862V



538 FILBURN V. PEOPLE'5 PALACE is. AyUARlUM CO.

Lockzvood, Q. C, and Cyril Dodd, Q. C, in support of the
appeal. There are certain animals recognised as being of an un-
tameable nature, and these a person keeps at his peril. In Hale's
Pleas of the Crown (vol. i. p. 430), it is said: "Tho' he have no
particular notice, that he did any such thing before, yet if it be a
iDcast. that is fercc naturcu, as a lion, a bear, a vi^olf, yea an
ape. if he get loose and do harm to any person, the owner is
liable to an action for damage." There is, however, no hard
and fast line which prevents an animal fcrcu natnrcc ceasing to belong
to that class and becoming domesticated. The distinction is drawn
in Rex v. Huggins (2 Ld. Raym. 1574), where it is said: "There
is a difference between beasts that are fercE naturcu, as lions and
tygers, which a man must always keep at his peril ; and beasts that
are mansuctcc naturae, and break through the tameness of their
nature, such as oxen and horses. In the latter case an action lies
if the owner has had notice of the quality of the beast ; in the former
case an action lies without such notice." All animals are wild by
nature, and the reason for the distinction is, that some of them are
treated as domesticated, because they have been tamed and are used
in the service of man. Though there are wild elephants, just as there
are wild oxen and horses, a great number have been tamed, and are
used in the service of man ; and the same ruling should apply to
individuals of this class as to domesticated animals generally. The
jur}^ have negatived any knowledge on the part of the defendants of
any dangerous character in this elephant, and they are, under these
circumstances, entitled to the verdict.

Montague Lush, contra, was not called on.

Lord Esher, M. R. The only difficulty I feel in the decision
of this case is whether it is possible to enunciate any formula under
which this and similar cases may be classified. The law of England
recognises two distinct classes of animals; and as to one of those
classes, it cannot be doubted that a person who keeps an animal be-