Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

. (page 77 of 124)
Font size
QR-code for this ebook

longing to that class must prevent it from doing injury, and it is
immaterial whether he knows it to be dangerous or not. As -to
another class, the law assumes that animals belonging to it are not
of a dangerous nature, and anyone who keeps an animal of this
kind is not liable for the damage it may do, unless he knew that
it was dangerous. What, then, is the best way of dealing generally
with these different cases? I suppose there can be no dispute that
there are some animals that every one must recognise as not being
dangerous on account of their nature. Whether they are fcrcu
natur^ so far as rights of property are concerned is not the ques-
tion ; they certainly are not so in the sense that they are dangerous.
There is another set of animals that the law has recognised in Eng-
land as not being of a dangerous nature, such as sheep, horses,
oxen, dogs, and others that I will not attempt to enumerate. I
take it this recognition has come about from the fact that years ago,
and continuously to the present time, the progeny of these classes
has been found by experience to be harmless, and so the law as-



riLiiLKX :. riiuPLii s palacl; & AguAKiUM co. 539

sumcs the result of tliis experience to be correct \vitlif)ut further
proof. Unless oil animal is brought within one of these two de-
scriptions — that is, unless it is shewn to be either harmless by its
very nature, or to belong to a class that has become so by what may
be called cultivation — it falls within the class of animals as to which
the rule is, that a man who keeps one must take the responsibility
of keeping it safe. It cannot possibly be said that an elephant comes
within the class of animals known to be harmless by nature, or
within tliat shewn by experience to be harmless in this country, and
consequently it falls within the class of aninials_that_a_rnan^ keeps_
at his peril, and which he must preventJTromTdoinginjury under
any circumstances, unlesS-iEe persj)n_to whom the injury is done
brings it on^JiTmselL It was, therefore, immaterial in this case
whether the particular animal was a dangerous one, or whether the
defendants had any knowledge that it was so. The judgment en-
tered was in these circumstances right, and the appeal must be dis-
missed.

LiNDLEY, L. J. I am of the same opinion. The last case of
this kind discussed was May v. Burdett (9 Q. B. loi), but there the
monkey which did the mischief was said to be accustomed to attack
mankind, to the knowledge of the person who kept it. That does
not decide this case. We have had no case cited to us, nor any
evidence, to shew that elephants in this country are not as a class
dangerous ; nor are they commonly known here tobelon^ ta -the
class of domesticated animals. Therefore a person who keeps one
is liable, though he does not know that the particular one that he
keeps is mischievous. Applying that principle to this case, it appears
that the judgment for the plaintifT was right, and this appeal must
be dismissed.

BowEN, L. J. 1 am of the same opinion. The broad principle
that governs this case is that laid down in Fletcher v. Ryhvids (Law
Rep. I Ex. 265; Law Rep. 3 H. L. 330), that a person who brings
upon his land anything that would not naturally come upon it, and
which is in itself dangerous, must take care that it is kept under
proper control. The question of liability for damage done by mis-
chievous animals is a branch of that law which has been applied in
the same way from the times of Lord Holt (See Mason v. Keeling,
12 Mod. 332) and of Hale until now. People must not be wiser than
the experience of mankind. If from the experience of mankind a
particular class of animals is dangerous, though individuals may
\he tamed, a person who keeps one of the class takes the risk of any
idamage it frra^do.' If, on the other hand, the animal kept belongs
to a class which, according to the experience of mankind, is not

^Accord: Crowdcn, J., in Besoszi v. Harris, i F. and F.. 92 (1858"),
p 93 " Every one must know that bears are of a savage nature. For though
such nature mav sleep for a time, this case shows it may wake up at any
time"; and Todd. J., in Vrcdcuburg v. Behan, post p. S2l. ,^ , . .

In Hays v. Miller, infra, it was held that a plea that the wolf had been
to the defendant's knowledge "domesticated to such an extent as to lead those
acquainted with its habits to believe that no harm would come from contact
with it" was held to have been properly stricken out suicc the facts set out
were no defense to the action though provable in mitigation of damages.




540 EARL V. VAN ALSTINE

dangerous, and not likely to do mischief, and if the class is dealt
with by mankind on that footing, a person may safely keep such
an animal, unless he knows that the particular animal that he keeps
is likely to do mischief. It cannot be doubted that elephants as a
class have not been reduced to a state of subjection; they still re-
main wild and untamed, though individuals are brought to a degree
of tameness which amounts to domestication. A person, thereforeT/
who keeps an elephant, does so at his own risk, and an action caiy
be maintained for any injury done by it, although the owner l:iad no
knowledge of its mischievous propensities. I agree, therefore, th^
the appeal must be dismissed. /

Appeal dismissed.^

^ ^^/

^ S>^ /• EARL V. VAN ALSTINE.

Supreme Court of New York, 1850. 8 Barbour, 630.

This action was commenced in a justice's court. The com-
plaint alledged that the defendant was the owner of 15 hives of
bees, which he wrongfully kept in his yard adjoining the public
highway, and that the plaintiff's horses, while travelling along the
highway and passing the place where the bees were kept, were at-
tacked and stung so severely that one of them died and the other
was greatly injured, &c. The answer denied the charge contained
in the complaint. Upon the trial, the keeping of the bees as alleged,
and the injury to the horses, were proved, and the plaintiff recovered
judgment for $70.25 and costs. Upon appeal to the county court
of Wayne county, this judgment was reversed, and the cause was
brought to this court by appeal from the judgment of the county
court.

By the Court, Selden, J. This case presents two questions; i.
Is any one who keeps bees liable, at all events, for the injuries they
may do? and 2. Did the defendant keep these bees in an improper

In Spring Co. v. Edgar, 99 U. S., 645 (1878), Clifford, J., p. 653, seems
to recognize an intermediate class between domestic and untamable animals,
animals which may be tamed but which are liable to revert to their wild

habits.

* So in Vredenhurg v. Bchan, post, p. 521 ; Besozci v. Harris, i F.
and F., 92 (1858), and Marquct v. La Duke, 96 Mich., 596 (1896), bears,
in Marlor v. Ball, 16 Times L. R., 239 (1900), zebras, and in Hayes v. Miller,
150 Ala., 621 (1907), and Manger Bros. v. Shipman, 30 Neb.. 352 (1890),
wolves were held to be animals ferae naturae so far as the liability of their
custodians was concerned. In Spring Co. v. Edgar, 99 U. S., 645 (1878), it
was alleged that the defendants knew of the vicious nature of a stag allowed
to range over its premises, and the evidence of defendant's knowledge was
held to have been properly left to the jury.

In Maung Kyati Dun v. Ma Kvi^ and Naracanan Chetty, 2 Upper Burma
Rulings, Civ. 570 (1900), it was held that, "In view of the manner in, and
the extent to, which elephants are employed in this country, such a proposi-
tion" (that their owners should be liable for harm done by them without
proof of negligence or knowledge of their vicious disposition) "would be
manifestly unjust."



EARL V. VAN ALSTINE 54L

manner or place, so as to render him liable on that account?

It is insisted by the plaintiff that while the proprietor of animals
of a tame or domestic nature domitcc iiatunc, is liable for injuries
done by them, (aside from trespasses upon the soil,) only after
notice of some vicious habit or propensity of such animal ; that one
who keeps animals fcnc noturcc is responsible at all events for any
injuries they may do, and that as bees belong to the latter class it
follows of course that the defendant is liable.

In order to determine this question, upon which no direct or
controlling authority exists, that I have been able to find, it becomes
necessary to look into the principles upon which one who owns or
keeps animals is held liable for their vicious acts. It will be found,
on examination of the authorities upon the subject, that this classi-
fication of animals by the common law into animals fcrce natiira:
and domitcc naturcc has reference mainly if not exclusively, to the
rights of property which may be acquired in them ; those of the
latter class being the subjects of absolute and permanent ownership,
while in regard to the former only a qualified property can exist,
and the distinction is based upon the extent to which they can be
domesticated or brought under the control and dominion of man,
and not at all upon the ferocity of their disposition, or their prone-
ness to mischief. For instance, the dog, some species of which are
extremely savage and ferocious, is uniformly classed among animals
domita naturcc, while the hare, the rabbit and the dove are termed
fcrcc naturcc, although comparatively harmless. It would not be
rational to suppose that a classification adopted with exclusive refer-
ence to one quality of animals, could be safely used to define and
regulate responsibilities growing out of other and different qualities;
nor would it accord with that just analysis and logical accuracy
which distinguish the common law, that it should be resorted to
for that purpose. And although some dicta may be found in the
books which might seem to countenance the idea, the decided cases
do not lead to any such conclusion.

Peake, in his work on evidence, under the head of "Actions
founded in negligence," has the following: "If one man keep a
lion, bear, or any other wild and ferocious animal, and such animal
escape from his confinement and do mischief to another, the owner
is liable to make satisfaction for the mischief so done without
further evidence of negligence in him; for every person who keeps
such noxious and useless animals must keep them at his peril. On
the contrary, if a man has a dog, a bull, or any other domestic ani-
mal such as are usually kept and are intleed )iccessary to the exist-
ence of man, no action is maintainable without proof of knowledge,
&c. ; for without such knowledge no negligence or fault is imputable
to the defendant." (Norris' Peake, 486.) Three things are worthy
of notice in this extract. In the first place the author mentions
animals that are not only wild but ferocious, and speaks of them as
not only noxious but useless. In speaking of domestic animals he



54^ EARL V. VAN ALSTINE

dwells upon their utility and value ; and lastly, he makes negligence
the foundation of the liability of the owner.

These authorities seem to me to point to the following conclu-
sions. I. That one who owns or keeps an animal of any kind be-
comes liable for any injury the animal may do, only on the ground
of some actual or presumed negligence on his part. 2. That it is
essential to the proof of negligence, and sufficient evidence thereof,
that the owner be shown to have had notice of the propensity of the
animal to do mischief. 3. That proof that the animal is of a savage
and ferocious nature is equivalent to proof of express notice. In
such cases notice is presumed.

Having shown, then, as I think, clearly, that the liability does
not depend upon the classification of the animal doing the injury,
but upon its propensity to do mischief, it remains to be considered
whether bees are animals of so ferocious a disposition, that every
one who keeps them, under any circumstances, does so at his peril.
If it is necessary for the plaintifif to aver and prove the mischievous
nature of the animal, nothing of the kind was done in this case;
but if courts are to take judicial notice of the nature of things so
familiar to man as bees, which I suppose they would be justified
in doing, then I would observe that however it may have been
anciently, in modern days the bee has become almost as completely
domesticated as the ox or the cow. Its habits and its instincts have
been studied, and through the knowledge thus acquired it can be
controlled and managed with nearly as much certainty as any of
the domestic animals ; and although it may be proper still to class
it among those fercp naturce, it must nevertheless be regarded as
coming very near the dividing line, and in regard to its propensity
to mischief. I apprehend that such a thing as a serious injury to
persons or property from its attacks is very rare, not occurring in
a ratio more frequent certainly than injuries arising from the kick
of a horse, or the bite of a dog.

There is one rule to be extracted from the authorities to which
I have referred, not yet noticed, and that is that the law looks with
more favor upon the keeping of animals that are useful to man,
than such as are purely noxious and useless. And the keeping of
the one, although in some rare instances they may do injury, will
be tolerated and encouraged, while there is nothing to excuse the
keeping of the other. In the case of Vrooman v. Lawyer, (13 John.
Rep. 339, j the court say : "If damage be done by any domestic animal
kept for use or convenience, the owner is not liable to an action,
without notice." The utility of bees no one will question, and hence
there is nothing to call for the application of a very stringent rule
to the case. Upon the whole, therefore, I am clearly of the opinion
that the owner of bees is not liable at all events for any accidental
injury they may do. The question is still left whether the keeping
of these bees so near the highway subjects the defendant to a re-
sponsibility which would not otherwise rest upon him. I consider
this question as substantially disposed of by the evidence in the
case. It appears that bees had been kept in the same situation for



SCRlBNliR v. KELLEY 543

some eiglit or nine years, and no proof was offered of the slightest
injury ever having heen done by them. On the contrary, some of
the witnesses testify that they had hved in the neighborhood and
had been in the habit of passing and repassing frequently, with
teams and otherwise, without ever having been molested. This
rebuts tlie idea of any notice to the defendant, either from the nature
of bees (M- otherwise, that it would be dangerous to keep them in
that situation ; and of course, upon the principles already settled, he
could not be held liable.

The judgment of the county court must be affirmed.^

SCRIBNER V. KELLEY.

Supreme Court of New York, 1862. 38 Barbour 14.

Action brought to recover damages for an injury caused by
the fright of the plaintiff's horse at the sight of an elephant of
the defendants, about November 22, 1857, at or near Tarrytown,
in the county of Westchester. The elephant was in charge of a
person alleged to be the servant of the defendants. The person
so in charge at the time of the accident was traveling with the
elephant on the highway called the Highland turnpike, and was rid-
ing on horseback, on the westerly side of said elephant. The plain-
tiff, with his horse and wagon, was traveling through Beekman street,
going east, and was about one hundred feet from said turnpike road,
when his horse, seeing the elephant coming down the turnpike, at
some distance above the point of intersection of Beekman street
with the turnpike, became frightened and ran away, causing the
damage complained of. The complaint alleged that the defendants



'Accord: Petey Mfg. Co. v. Dryden. 5 Penniwell (Del.) 166 (1904);
Parsons v. Mauser, 119 la. 88 (1903), Ladd, J., saying, p. 90: '"Every one
harboring creatures ferae naturae is charged with knowledge of their habits
and evil propensities. There is no reason for an exception in favor of the
bee. Indeed, their disposition to make themselves felt is a matter of common
observation or experience from early childhood. But they are very useful, the
(apiary), often furnishing a livelihood and generally proving a source of
profit :' and the books seem to look with more favor upon the keeping of
animals useful to man than those which are worthless save as curosities.
For this reason the rule of absolute liability for the consequences of in-
juries received from wild beasts kept in confinement, declared in the earlier
decisions, even if regarded as sound, ought not to be extended to creatures
$0 nearlv domesticated." See also Lucas v. Pettit. 12 Ont. L. R. 448 (1906),
and O' Gorman v. O' Gorman, I. R. (1903) 2 K. B. 573, especially argument
of Bourke, K. C, and compare Maug, Kyan Dun v. Ma Kyin. et al.. note to
Filburn v. Peoples Palace, etc., ante.

But one keeping bees may be liable if he be guilty of negligence, as where
he keeps them .it an improper place, Parsons v. Mauser, supra, hives main-
tained near hitcliing post for horses: Lucas v. Pettit. sufra. more than a
hundred hives placed close to plaintiff's premises, or where he otherwise deals
with them in a wav tending to the injury of others, O'Gorman v. O'Gorman,
supra, defendant smoked out his bees while plaintiff was " tackhng " his
horses on his adjacent premises.



544 SCRIBNER V. KELLEY

were the owners of said elephant, and the person in charge of him
their servant, and that said servafnt well knew that said elephant
was calculated to and would frighten horses, and that by want of
care on his part, without any negligence of the plaintiff, the damage
occurred. The answer of the defendant Kelley admitted the own-
ership of the elephant, and denied every other allegation in the com-
plaint. After the plaintiff rested his case, the counsel for the de-
fendants moved for a nonsuit and dismissal of the complaint, on
the grounds, ist. That there was no proof that the defendants
knew the elephant would cause and produce such injury ; and 2d.
There was no proof of carelessness or negligence on the part of
the defendants or their agents or servants. Which motion was
granted by the courts and the complaint dismissed, on the ground
that no negligence was shown on the part of the defendants, and
the plaintiff excepted to such decision. The plaintiff moved for a
new trial, on a case and exceptions ordered to be heard in the first
instance at a general term.

By the Court, Scrugham, J. • The liability of the owner or
keeper of an animal of any description, for an injury committed by
such animal, is founded upon negHgence, actual or presumed. It
is not in itself unlawful for a person to keep wild beasts, though
they may be such as are of a nature fierce, dangerous and irre-
claimable; but as the propensity of such animals to do dangerous
mischief is well known, and is inherent and not to be eradicated by
any effort at domestication, nor restrained except by perfect con-
finement or extraordinary skill and watchfulness, the owner or
keeper of such dangerous creatures is required to exercise such a
degree of care in regard to them as will absolutely prevent the
occurrence of an injury to others through such vicious acts of the
animal as he is naturally inclined to commit. Under such circum-
stances the occurrence of the act producing the injury affords suffi-
cient evidence that the owner or keeper has not exercised the degree
of care required of him, and his failure to do so is negligence. There-
fore, to maintain an action for an injury caused by the vicious act
of such an animal, it is not necessary to prove that it occurred
through the actual negligence of the owner or keeper, but the neg-
ligence upon which his responsibility rests will be presumed.

This is so because the injury results from a vicious propensity
which is the natural effect and sure accompaniment of the savage
and ferocious nature of the animal, and the existence of such quali-
ties in him is equivalent to proof of express notice of the propensity.
But it is apparent that the rule will not apply where the injury does
not proceed from any such propensity ; for it is only of its existence
that the savage and ferocious nature of the animal can be regarded
as notice.

In this case the injury resulted not from the act of the elephant,
but from the fact that his appearance, as he was passing along the
highway, caused the horse of the plaintiff to become frightened and
unruly. To render the defendants liable for the damage that ac-
crued, it would be necessary to show, not only that such is the effect



VREDENBURG, et a!., I'. BEHAX, ct oL 545

of the appearance of an elephant upon horses in general, but also
that the defendants knew or had notice of it; for if it is conceded
that the elephant is of a savage and ferocious nature, it does not
necessarily follow that his appearance inspires horses with terror.
It does not appear that the elephant was at large, but on the contrary
that he was in the care, and apparently under the control, of a man
who was riding beside him on a horse ; and the occurrence happened
before the passage of the act of April 2d, 1862, regulating the use
of public highways. There is nothing in the evidence to show that
the plaintiff's horse was terrified because the object he saw was an
elephant, but only that he was frghtened because he suddenly saw,
moving upon a highway crossing that upon which he was traveling,
and fully 100 feet from him, a large animate object to which he was
unaccustomed — non constat that any other moving object of equal
size and differing in appearance from such as he was accustomed
to see might not have inspired him with similar terror. The injury
which resulted from his fright is more fairly attributable to a lack
of ordinary courage and discipline in himself, than to the fact that
the object which he saw was an elephant.

The complaint was properly dismissed, at the circuit.^

Judgment for the defendants, with costs.

TwisDEN, J., in Mitchil v. Alcstrcc, i Ventris, 295 (1676) : "If
one hath kept a tame Fox, which gets loose and grows Wild, he
that hath kept him before shall not answer for the Damage the Fox
doth after he has lost him, and he hath resumed his wild Nature."^



VREDENBURG et al. v. BEHAN et al.

Supreme Court of Louisiana, 1881. 2>2 La. Ann. 627.

The opinion of the Court was delivered by

Todd, J. Airs. V. Vredenburg, in her own behalf as the widow
of William Hazard Vredenburg, deceased, and as tutrix of his minor
children, brings this suit against the defendants, and claim from
them i>i solido fifty-five thousand dollars damages.



^Accord: Bosfock Ferrari Amusement Co. v. Brocksmith, 34 Ind. App.
566 (iv)05), plaintiff's horse frightened by a docile, gentle bear which was
being led by the defendant's servants, properly secured and under perfect
control, through the public streets, compare Marsh v. Koons and other cases
cited in note 2 to Hcaly v. Ballentine and Sons, ante.

If on the contrary the animal escapes from control and does injury
while being driven or led through the streets, the person driving or leading
it, will be liable if he fails to take that care in so doing which, in view
of the known character of the class to which it belongs, as a wild bull.
Barnum v. Terpenning. 75 Mich. 557 (1889"), or of its known individual pro-
pensities, Liniehan v. Savipson, 126 Mass. 506 (1879) : Hudson v. Roberts,
6 Exch. 697 (1851), is necessary to secure the safetv of the travelling pub-
lic.

While even gentle bulls are notoriously apt to become irritated and there-
fore unfit to be led or driven upon the highway without stringent care to



54^ VREDENBURG, Ct al., V. BEHAN, et al.

I. The facts out of which this controversy grew are, substan-
tially, as follows :

The defendants w-ere members of an association or society
known as the Crescent City Rifle Ckib.

In July, 1877, the club, wishing to send some of its members
Korth to participate in an inter-State rifle shooting match, about to
take place in Xew York, for the purpose of providing means there-
for, concluded to give an entertainment at Milneburg, on Lake Pont-
chartrain. The Continental Guards, a military company of the city
of Xew Orleans, to further the object in view, and as a contribution
to the proposed entertainment, ofifered to the club a bear, owned by
the officers of the company, "as a prize to be shot for" on the occa-
sion. The ofifer was accepted, and a member of the club was in-
structed to make the necessary arrangements for shooting for the
bear.