The monkey case. 9 Q. B. 101. [cf: p. 253. [ante, p. 100.] independent of it, the right being governed by an entirely new set of principles. The governing principle of remoteness of damage in torts is this: Did the person charged contemplate, or could or ought he to have contemplated or foreseen, its occurrence? If he did not, if it is such that a reasonable man could not have foreseen it, then the damage is too remote. Now in this instance this foresight cannot be tested by the answer to the question, "If my fence is broken or insufficient, will my horse injure my neighbour's mare?" but by the answer to this: "If my horse escapes through my fence, is it of such a vicious disposition that it will injure my neighbour's mare; or is it usual for horses to kick mares?" and this is precisely the question which is propounded to test the scienter. And yet in the two cases it is answered differently, and for no apparent reason (2). (ii.) Other Injuries by Animals. We now come to other injuries by animals, such as kicking, biting, or goring. (a.) By animals feræ naturæ. The leading case on the subject is May v. Burdett. The action was for keeping a monkey which the defendant knew to be accustomed to bite people, and which bit the female plaintiff. The conclusion from the early cases was said to be that "whosoever keeps an animal accustomed to attack and bite mankind, with knowledge that it is so accustomed, is on the company, and the plate-layers being their servants and identified with them, it was held they could not recover against the owners of the pigs. Difficult questions sometimes arise in these cases in determining whose is the duty to repair, but these lie outside our subject. (2) That is no reason apparent on the face of the judgments. A reason may, however, easily be suggested from the fact of the injury being done by a horse to a mare; if this be the true distinction, then the inference drawn by the learned editor of Addison is not warranted. The case of an injury to a man in a field would probably be governed by Cox v. Burbidge, prima facie liable in an action on the case at the suit of any person attacked and injured by the animal, without any averment of negligence or default in the securing or taking care of it. The gist of the action is the keeping the animal after knowledge of its mischievous propensities. The cause of action is the propensity of the animal, the knowledge of the defendant, and the injury to the plaintiff. The conclusion is, therefore, that a person keeping a mischievous animal, with knowledge of its propensities, is bound to secure it at his peril, and that if it does mischief, negligence is presumed without express averment." It is to be observed that nothing turns on the animal being at large or being ill-secured, but that the liability depends solely on the keeping; as was said by Platt, B., in Jackson v. Smithson : No doubt a man has a right to keep an animal which is feræ naturæ, and nobody has a right to interfere with him in doing so, 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." The scienter is the gist of the action. 15 M. & W. 563. scienter of the particular animal, in others, of the class to which it belongs. It is to be observed further that the defendant's knowledge In some cases is an essential to the action: but the inquiry seems to be not to the knowledge of the ferocity of the particular animal, but of the ferocity of the class to which it belongs. In many cases, such as of lions or tigers, this knowledge would be presumed; but in other cases, as in the case of the monkey, both the propensity of the class, and the knowledge of the propensity of the class, would have to be brought home to the defendant. If the Court thinks that everybody knows this with regard to the class in question, then possibly it would be taken prima facie that the defendant knew. Further, as we shall see, it is the propensity to do the act which has caused the injury, and not to do acts which are only generally attributed to wild animals. It is usually said that domesticated animals which have resumed their savage nature come under the same rules as those feræ naturæ as in Jackson v. Smithson, where the Scienter of the particular mischief. I Stark: 212. Must be very 6 Ex: 699. [ante, p. 101.] [ante, p. 99.] injury was by a ram "accustomed to attack, butt, and injure mankind." It seems possible, however, that this (like the case of ferocious dogs) is only an instance of the rule of liability for injuries from animals mansuetæ naturæ, which would depend on whether the defendant's knowledge extended to the propensity of this ram in particular or of rams in general. (B.) By animals mansuetæ naturæ. As to these animals the rule is clear beyond doubt that the knowledge of the defendant must be shewn of their propensity to do the act in question. This is well illustrated by the case of Hartley v. Halliwell: the action was against the owner of a dog for killing sheep, the allegation being that the defendant knew that the dog was accustomed to kill sheep: but the proof given in support of it was that the dog had previously sprung on a man. This was held to be insufficient, unless it could also be shewn that every dog which jumped at men would of necessity bite sheep. The Court said, however, that possibly if the declaration had been more general, by alleging the dog to be of a ferocious and savage disposition and that it ought not to be left at large, the action would have been maintainable. So in the bull case (Hudson v. Roberts), where the plaintiff, who wore a red handkerchief, was gored, the Court was satisfied that the defendant knew his bull would run at anything red. The judgment in Cox v. Burbidge affords another illustration of this; but in saying that it was not usual for "horses to kick children on the highway," it may be doubted whether Erle, C.J., did not stretch the principle too far: the question whether the defendant knew that his horse kicked would appear to have been sufficient (1). (1) So in Sanders v. Teape, the question which was apparently in the mind of the Court was whether it was usual for the defendant's dog to jump over walls on to people's necks. The case is by no means free from difficulty. One point seems clear: that, supposing a sheep jumped over the wall, and to have damaged both the labourer and the occupier of the land, the labourer, as a (7.) Bites by Dogs. The commonest class of cases in which scienter is discussed are those in which the plaintiff has been bitten by a ferocious dog. And as to these the rule we have just discussed applies; it will be necessary, however, to examine a few cases to see (i) how it applies, that is, what amount of knowledge is requisite; (ii.) what amount of notice will be construed into knowledge. (i.) What amount of knowledge constitutes scienter. It has often been said that a dog is allowed at least one bite, but this notion has sprung from an expression of Cockburn, C.J., in the Scotch appeal of Fleming v. Orr, that every dog became entitled to at least one worry;" but the case was one of worrying sheep, and injuries to cattle or sheep are regulated by 28 & 29 Vict. c. 60. It is now settled that it is unnecessary, in order to render the master liable, that the dog should have bitten anyone: it is sufficient to shew that the master knew that it had evinced a savage disposition by attempting to bite people: Worth v. Gilling. In that case the plaintiff had judgment because it was proved "that the dog uniformly made every effort in his power to get at any stranger who passed by, and was only restrained by his chain." He had not succeeded in biting anybody till he caught the plaintiff; but he had been bought for his ferocity. So in Jones v. Perry the defendant was held liable, it Examples. 2 Esp: 482. licensee, could only have a right of action against the owner of the sheep, if the occupier of the land could in an action of trespass have recovered as special damage the injury to himself; and this, being as we have seen a question independent of the vice of the animal, he could undoubtedly have done. How then is the question altered by the rules as to trespasses by dogs? We are clearly thrown back on the test in the case of personal injury, which is knowledge; and this seems to necessitate the question proposed above; it is difficult to find any other. It seems a curious excuse from liability that the accident occurred from the animal's playfulness. 2 Stark: 285. I Esp: 203. Examples of notice given to others than the master. 36 L. J: C. P. 153. L. R. 7 Ex: 325. 33 L. J: Q. B. 310. L. R. 9 C. P. 647. General rule otice. being proved that the dog had been bitten by a mad dog, and that the defendant had a suspicion of his madness by tying him up. The mere fact of telling a person to beware of the dog will not exempt the owner from liability, it will rather be evidence against him of his knowledge of the dog's propensity: supposing of course the plaintiff to be guilty of no negligence and to be lawfully on the premises: Judge v. Cox. In Brock v. Copeland the plaintiff failed: he was the defendant's foreman, and knew that a ferocious dog was kept for the safety of the premises loose in a yard: he incautiously went into the yard and was bitten. (ii.) What amount of notice constitutes knowledge. It is essential that the owner or person under whose control the dog is should have notice of the animal's propensity. But the question arises whether notice to a servant will affect the master with notice. In Gladman v. Johnson a message sent to the master through his wife was held to be sufficient, but the case has been doubted. In Baldwin v. Casella the defendant had deputed to his coachman the care and control of the dog, and therefore a notice to him of the vicious nature of the dog was held to be notice to the master. In Stiles v. Cardiff Steam Co. it was held that notice to or knowledge in the manager or person having control of the yard would have been sufficient: but that the knowledge of some men in the yard who had the charge of the horses was insufficient. And in Applebee v. Percy notice had been given to people who, in the absence of their master, had the management of the business; it was held that there was evidence of scienter to go to the jury. The rule may be put shortly thus: the master will be held |
