repairs; they were executed negligently, and an accident happened. It was held that B. was liable and not A. In the judgments it seems to have been treated as immaterial whether the negligence was B.'s, or his workmen's. In the facts, however, there is this important statement: "In consequence of the omission of B., or some of his servants, to turn the gas off, a large quantity of it escaped and exploded." If the omission had been on the part of his servants, then the case is an illustration of the application of these rules to sub- [cf: p. 83.] contractors. It is suggested that this must be read into the case, and that the decision really leaves untouched the principle of Sadler v. Henlock. Where the work is done by a contractor himself, the chief features of the relation of master and servant exist, namely, the power of selection, the right to control, and the power to dismiss on a proper occasion; and it would seem therefore that the person for whom the work is done is liable for the tort of the contractor, though he is not liable for those of the contractor's servants. Tarry v. Ashton may also be explained on this ground. § 8. LIABILITY FOR DAMAGE CAUSED BY ANIMALS. In dealing with the liability of an owner for the injurious acts of his animals, it will be convenient to deal first with trespasses, and secondly with other injuries which spring from their viciousness. (i.) Trespasses by Animals. First, then, as to trespasses. The question only arises when the trespass is independent; for it seems perfectly clear, that if an animal accompanies any person (whether his master or a stranger), the damage done by the animal is consequential upon the trespass of the person he accompanies, and damages for it may be recovered in the action against that person. (See Beckwith v. Shordike (1).) (1) Where the owner of lands adjoining a highway has neglected to fence them, although there is no obligation so to do, and cattle stray from the high H The case satisfies the ordinary tests of master and servant. [ante, p. 96.] Owner independent trespasses by liable for animals. 4 Burr: 2093. Trespass due to neglect only where animal capa ble of becoming property. 5 Co: 104a. Case of the coneys. Scienter is not considered in trespasses by But where the trespass is committed by the animaì independently of his master (2), the rule is, that where the animal is one in which the law gives him what is called "a valuable property," the master is liable, but if it is one in which he had no such property, then he is not liable. Animals mansuetæ naturæ, cattle, sheep, poultry, and all domestic or domesticated animals come under the first class: those which are wild, feræ naturæ, come under the second. In Boulston's case it was ruled that an action would not lie against a man for making coney-boroughs on his own land, although the coneys increased in so great number that they destroyed his neighbour's land next adjoining. And the reason given was, that so soon as the coneys come on the neighbour's land he might kill them; for they are feræ naturæ, and he who makes the coney-boroughs has no property in them (the coneys), and he shall not be punished for the damage which the coneys do in which he has no property, and which the other may lawfully kill. This distinction of animals into those mansuetæ and those feræ naturæ, and the consequent rule of law that the first are the subject of property, and the second are not the subject of property, leads us to the consideration of some of the most extraordinary anomalies of our law. When we come to other injuries, such as biting, kicking, or goring, we shall find that the distinction has led to a very wild animals. useful rule, making liability depend on the scienter, or knowledge of vice, according as the animal is tame or wild: but fence highway. 28 L. J: Ex: 298. 2 H. Bl: 528. 10 Q. B. D. 17. way into his fields and injure his crops, he cannot immediately distrain the cattle damage feasant, but must either attempt to drive them out himself or allow the drovers a reasonable time to return and get them off the land. It would seem also that no action would lie against the owner of the cattle for trespass if the drover returned with reasonable speed: Goodwyn v. Cheveley. But this rule only applies where the cattle are lawfully using the highway and are not straying thereon: Dovaston v. Payne. (See also the remarks on the bull in the china shop case: Tillett v. Ward, post, p. 213.) (2) The animal will be considered to be trespassing independently of his master if he is accompanying a servant in the trespass, where the master cannot be held liable for the servant's trespass as being beyond the scope of his employment. In such a case of course the servant will be liable. cussion on p. 111.] that rule, it will be seen, ignores the question of property, [f: the dismaking possession the sole test. It is somewhat extraor- Rylands v. dinary that the mere possession and propagation of wild Fletcher, post, animals does not make the possessor of them liable for trespass, even if coupled with a knowledge of their roving disposition or mischievous propensities when loose. And even when we accept this test of strict ownership with regard to trespasses, we are face to face with another anomaly, which arises from the difficulty of drawing a hard and fast line between wild and domestic animals. The dog has given the lawyers considerable anxiety: he Dogs. was not the subject of property at common law, and, like many other things, it was not the subject of larceny until it was so provided by the 24 & 25 Vict. c. 96. The old lawyers seem nevertheless to have been shocked at the argument that the dog was a wild animal, and had not yet completely shaken off the nature of its wolfish progenitors. The requirement of a scienter to make the owner liable for his dog's bite shews, that at least in one respect the animal is supposed to be tame. Nevertheless it has been held on this ground of absence of property, that if a man's dog goes into his neighbour's garden and spoils and injures his crops, no action will lie: Mason v. Keeling; Brown v. Jiles; and these cases were approved in a very recent case, Sanders v. Teape, where a dog jumped over a wall and fell on to the plaintiff's neck, who was a workman on the neighbouring premises, and injured him. The Court held that the result of the cases was that "if a dog going about commits an injury or does any mischief, the owner of the dog will be liable only if the dog was of a mischievous nature, and he was aware of that fact." No distinction was taken between trespasses and other injuries committed by a dog: but it is certain that this distinction does exist with regard to other animals both mansuetæ and feræ naturæ. In this case, however, the question of trespass really 17 C. B: N. S. 245. scienter of the particular mischief done. did not arise, for the labourer was a licensee, and could not have brought an action for trespass to the property against the owner of the dog. But in Read v. Edwards, the defendant's dog was allowed unless there is to be at large, and it entered the plaintiff's wood and destroyed his game. The jury found that the dog had a propensity for chasing and destroying game, going out of its own accord for that purpose, and that this propensity was known to the defendant. He was held liable on account of the scienter of the particular mischief which had occurred. Animals in which there may be a valuable property. 18 C. B: N. S. 722. Trespass followed by other damage. Examples of enquiry as to remoteness of damage. L. R. 10 C. P. 10. 13 C. B: N. S. 430. Example of enquiry as to scienter. It would seem, however, that this rule does not cover damage done by trampling on crops. Where, however, the owner has an absolute property, as in a horse, then he is liable for the trespass and for all the consequential damages, subject to the rules as to remoteness. In Lee v. Riley, through defect of fences, which it was the duty of the defendant to repair, his mare strayed in the night time from his close into an adjoining, and so into a field of the plaintiff's in which was a horse. From some unexplained cause the animals quarrelled, and the result was that the plaintiff's horse received a kick from the defendant's mare which broke his leg, and he was necessarily killed. The defendant was held liable, and the damage too remote. In Ellis v. Loftus Iron Co., the defendant's horse had injured the plaintiff's mare by biting and kicking her through the fence separating the plaintiff's land from the defendant's. It was held that the mere putting the horse's head over the plaintiff's land was a trespass, and, on the authority of the preceding case, the questions of liability and of remoteness of damage were answered in the plaintiff's favour. In Cox v. Burbidge, the defendant's horse was straying on a highway. As against the owner of the soil it was trespassing; or if it were a public highway, its owner was amenable under the Highway Act. The plaintiff, a child of tender age, was lawfully upon the highway, and was kicked by the horse. It was held that the defendant was not liable, on the ground "that the owner of an animal is only answerable for any damage done by it, provided it be of such a nature as is likely to arise from such an animal, and the owner knows it." The Court considered that the horse had done "something which was quite contrary to his ordinary nature; something which the owner had no reason to expect he would do," for " everybody knows that it is not at all the ordinary habit of a horse to kick a child on the highway." The present Mr. Justice Cave, in his edition of Addison on Torts, gives the principle to be deduced from the first two [5th ed: p. 110.] cases as follows: "Where an animal is a trespasser, the fact that an injury done by it there is due to the animal's vice is immaterial. The owner in such a case is liable for all the damage it may do, whether the damage is such as may reasonably be expected from the nature of the animal, or is due to the mischievous propensities of which the owner is ignorant." In a foot-note it is added that "these cases however are not easily reconciled with Cox v. Burbidge; as it is difficult to see on what principle the owner of a straying horse is liable if the horse kicks a man in the field, and not liable if he kicks him on a public road." The cases are indeed difficult to reconcile. The last proceeds on the absence of scienter, and may be for the present taken to be sound law. The first two depend on the principle of remoteness of damage, and to all appearance the two questions are different: but in point of fact they appear to the author to be entirely identical. The right to recover damages as tested by the principle The two enquiries are of remoteness is, it is true, connected with the initial trespass practically to this extent, that the question cannot arise until the initial the same. trespass has been proved (1): but once proved, it is entirely (1) Injuries which result to the plaintiff's cattle from the defendant's cattle getting through fences which were out of repair and which the plaintiff himself was bound to repair, give of course no right of action. An example of this is to be found in Child v. Hearn, where some pigs got through a fence from land adjoining a railway, and upset a trolly on which some plate-layers were travelling. The duty to fence being laid by statute |
