the other testimony alleged, the son was going to call on a friend, and his mother and sister were accompanying him on his invitation and as his guests.

At common law a parent is not liable to respond in damages for the independent negligent or tortious act of his minor child merely by reason of that relation. This rule, however, is subject to the qualification that a parent may be held liable if he directed or counselled the wrongful act or subsequently ratified it as in trespass.1

It would seem that the only other theory upon which a parent may be held to answer for the tortious act of his son is based not upon the relationship of parent and child but upon that of master and servant. This theory is illustrated in the principal case, which distinguishes the case of Doran against Thompson," in which it appeared that the defendant's daughter took his automobile out for her own pleasure and the pleasure of her three friends who accompanied her, no other members of the father's family being in the car, and the only element in the case tending to show that the daughter was acting as the servant of the father was the bare fact that the father owned the automobile, whereas in the principal case, supra, the testimony showed that the automobile at the time of the accident was occupied in part by members of the father's immediate family other than the son who was driving, which fact was held to constitute affirmative evidence that the automobile was being used in the father's affairs or business in furnishing his family with outdoor recreation. The real test is whether the act is done by one for another with the knowledge of the person sought to be charged as master, with his assent, expressed or implied, even though there was no request on his part to the other to do the act in question. The defendant was not held in the case of Heissenbuttel v. Megher5 decided May 29th, 1914. The defendant was held in the following cases and also in the case of Davis v. Littlefield' where the son was the sole occupant and driver, and at the time of the accident was on his way to a hotel to get some friends of his to take them riding.

In the case of Hays v. Hogans the parent was held liable on the theory that an automobile is a dangerous instrumentality, but the doc

'McCalla v. Wood, 2 N. J. L. 81; Evers v. Krouse, 70 N. J. L. 653; 58 Atl. 181; Currier & Bate, Cases on Torts, 78; Chastain v. Johns, 120 Ga. 977; 48 S. E. 343; Moon v. Towers, 8 C. B. (N. S.) 611. See also L. R. A. (N. S.) 933, citing many cases.

'Beedy v. Riding, 16 Me. 362; Hoverson v. Noker, 60 Wis. 511; 19 N. W. 382; Lamb v. Davidson, 69 Mo. App. 107; Newson v. Hart, 14 Mich. 233.

576 N. J. L. 754; 71 Atl. 296; Currier & Bate, Cases on Torts, 71.

5162 N. Y. App. Div. 752; 147 N. Y. S. 1087. See also Linville v. Nisson, 162 N. C. 95; 77 S. E. 1096. Also Schumer v. Register, 12 Ga. App. 743, 78 S. E. 731.

Smith v. Jordan, 97 N. E. 761; 211 Mass. 269; Stowe v. Morris, decided by Court of Appeals of Kentucky, 144 S. W. 52.

'81 S. E. 487. See also Birch v. Abercombie, 74 Wash. 486, 133 Pac. 1020, holding that ownership of an automobile established prima facie that it was in the possession of the owner at the time of the accident, and that the driver was acting for the owner. Also Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 351, holding that when the car is used for the pleasure of one of the minor children of the owner it is being used on business of the owner..

165 S. W. 1125 (Mo.).

trine of dangerous instrumentalities in its application to automobiles has been generally rejected by the courts.9

It is difficult to justify the grounds upon which the Massachusetts Supreme Judicial Court has determined the relation of illegal conduct to recovery in tort actions, where a child was operating the parents' automobile.

In the case of Gould v. Elder10 the defendant was the owner of an automobile, which was improperly registered. His son, with his assent, but not as his agent, took some friends for a ride in the car, and negligently injured the plaintiff. It was held that the father's failure to register the car according to law made him liable for the son's negligence.

W. S. N.

DOMESTIC ANIMAL, LIABILITY OF OWNER FOR INJURIES INFLICTED BY IT.-Contrary to the view held in England and in many American States, the doctrine prevails in New Jersey that the keeper of a wild beast, or a known vicious animal, is not absolutely liable for injuries inflicted by it. In De Gray v. Murray,1 the defendant kept a vicious dog securely locked up. The animal gnawed a lock from a door, escaped and attacked plaintiff. The owner was held not liable, having done all that a prudent man would do in the way of care and restraint. Of course the proposition is elementary that the owner of a domestic animal is not legally answerable for injuries inflicted by it, unless it be alleged and proved that he had knowledge of the animal's vicious propensities and failed to exercise due care. Such was the commonlaw doctrine, and is the rule to-day in New Jersey. But a man has a right to keep a wild beast or a dangerous domestic animal on his property, for display, protection, or other reason. The exact nature of the liability of one who maintains such an animal presents a more complex question. There is no doubt in any jurisprudence that the owner of a known vicious beast who negligently allows it to escape from proper custody is responsible for the injury it does. Incidentally a curious attempt in a recent Canadian case may be noted.5 In this case the defendant's minor son kicked the plaintiff, another infant, and injured him. He had previously kicked the plaintiff, to the defendant's knowledge. The court refuted the contention that by analogy to vicious animals, the defendant parent was liable because of scienter. But many jurisdictions go much further than the rule as laid down in Perkins v. Mossman, supra. At common law one who kept an animal ferae naturae, or a domestic


'Lewis v. Amorous, 3 Ga. App. 50; 59 S. E. 338; Parker v. Wilson, 60 South. 150 (Ala.); Colbourne 7. Detroit United Railway, 177 Mich. 139; 143 N. W. 32; Ind. Springs Co. v. Brown, 165 Ind. 465; 74 N. E. 615. 10107 N. E. 59.

169 New Jersey Law, 458, 55 Atl. 237.

'Cox v. Burbridge, 13 C. B. (N. S.) 430; Smith v. Donohue, 49 N. J. Law, 548, 10 Atl. 150.

'Rochers v. Remhoff, 55 N. J. Law, 475, 26 Atl. 860.

'Perkins v. Mossman, 44 N. J. Law, 579.

'Corby v. Foster, 29 Ont. L. R. 83.


animal known to be vicious, was liable as an insurer against injuries inflicted by it." As was said in the latter case, "the negligence is in keeping such an animal." And scienter is also conclusively presumed from the fact of keeping. This doctrine is adopted by many American States, among which need only be mentioned New York and Massachusetts. It is founded upon the same basis as is the decision in the well-known English case of Rylands v. Fletcher. That is, one who allows a dangerous instrumentality to exist upon his property is responsible for damage caused by its getting out of control, even if without negligence or wilfulness on his part. The rule as laid down in Rylands v. Fletcher, however, was rejected by Chief Justice Beasley in Marshall v. Welwood. As far as this State is concerned, if a man does a lawful act in a lawful manner and with due care, he is not an insurer that that act shall not injuriously affect others.

The use or possession of a dangerous instrumentality may bind a man to use a very high degree of care, but cannot constitute negligence per se. Although Marshall v. Welwood was occasioned by the bursting of a steam boiler, we may from that decision logically predicate the view our courts would take in the line of cases under discussion, which view is well exemplified in De Gray v. Murray, supra. It is plain then that one who keeps a dangerous animal with knowledge of its vice is not absolutely liable. The question of scienter is further considered in the recent case of Emmons v. Stevane.10 Whether the evidence is sufficient to charge the owner with scienter or not, is a question for the jury. If vicious propensities are once established, there is no legal presumption that the animal would be more likely to attack strangers than he would his attendant or members of the family. And the owner is bound to disclose any knowledge he may have of vicious qualities to a bailee or keeper. Another problem as to liability arises when an animal does damage in a place where it has no right to be. It has since ancient times been the duty of the owner of horses or cattle to confine them on his own land, and if they do break out and trespass on another's property, he is liable for the damage done to fences and crops. It is not necessary to allege or prove scienter, on the ground that horses and cattle have a natural innate propensity to trespass on land and destroy crops.' Nor is lack of negligence in the owner a defence. In fact, this action is founded on trespass and not on negligence. In Healey v. Ballentine,12 a horse was being negligently led on the sidewalk by the defendant's servant, and there injured the plaintiff by kicking her. Recovery was allowed without proof of scienter, on the ground that kicking was in so far the natural disposition of a horse that it might be expected as a natural consequence of the negligent act in placing the animal where he had an opportunity to do harm. On the other hand, in Smith v. Donahue, supra, the defendant's dog was at large upon the public street, and bit the plaintiff. There was no proof that


"Smith v. Pelah, 2 Strange 1264; Mays v. Burdett, 9 Q. B. 101. 'Muller v. Kesson, 73 New York 195; Marble v. Ross, 124 Mass. 44.

L. R. 3 H. L. 330.

38 N. J. Law 339; Currier and Bate, Cases on Torts, 656.

1077 N. J. Law, 570, 73 Atl. 544; Currier & Bate, Cases on Torts, 662 (1909).

"Angus v. Radin, 5 N. J. Law, 815; Coxe v. Robbins, 9 N. J. Law, 384. 1266 N. J. Law, 339, 49 Atl. 511; Currier and Bate, Cases on Torts, 666.

the dog was known to be dangerous, and judgment was for the defendant. The court stated that it had so long been the practise to allow dogs to run at large on the highway without holding the owner responsible for injuries which he had no reason to believe they would inflict, that such action could not prevail without scienter. It is further said as dictum that no action has even been maintained in this State against the owner of a dog, which has killed sheep upon another's land, unless scienter was shown. However shadowy the distinction may be in certain cases, the general principle prevails that to be held in damages, the owner must have knowledge that would lead him to expect that the animal would do the injury complained of. Such knowledge may be actual, because of previous happenings; or it may be presumed from the natural disposition and qualities of the animal, or from the fact of the owner allowing it to get into a position where it might naturally be expected to do harm. Furthermore, the owner must have failed to exercise that degree of care which the circumstancs of the cases demand.

J. A. A.

RES IPSA LOQUITUR.-Briefly, this doctrine is that which is brought into play when the following three factors in an accident concur:First, that there is an instrumentality under the exclusive control of defendant; second, that such instrumentality, without negligence in operation, would not ordinarily cause damage; third, that damage has been done to the plaintiff. It is generally asked in such a case "has the accident occurred by reason of some agency under the exclusive control of the defendant," and upon an affirmative answer the defendant is put upon his defense to explain away the inference of negligence thus raised.

The three requisites of negligence are, first-a legal duty to use care (this duty exists to a high degree between the carrier and passenger); second-a breach of that duty; third-injury caused by such breach to the plaintiff.

New Jersey courts have held, as will be seen from the following cases, "that there is a class of cases in which there has been no direct evidence of any particular act of negligence beyond the mere fact that something unusual has happened which caused the injury. In such cases each will depend upon its own facts, with the understanding, if something unusual happens with respect to the defendant's property, or something over which he has control, which injures the plaintiff, and the natural inference on the evidence is that the unusual occurrence is owing to the defendant's act, the occurrence being unusual, is said to speak for itself that such act was negligent." Bahr v. Lombard, Ayres & Co.2

In Mumma v. Easton & Amboy R. R. Co. the facts were:-Two men in a wagon approached a bridge which crossed over a railroad track, the view toward which was obstructed by natural causes, without seeing any signs of danger. As they were on the bridge an engine which was standing under the bridge and which they could not previously see because of the obstructions blew its whistle and started, frightening the horse so that he ran away, and the plaintiff was

129 Cyc. 590.

253 N. J. Law, 233; 21 Atl. 190; Currier & Bate, Cases on Torts, 552. 373 N. J. Law, 653; 65 Atl. 208; Currier & Bate, Cases on Torts, 580.




* *


seriously injured. Plaintiff contended that the doctrine of res ipsa loquitur applied and that "to blow a whistle or let off steam under the circumstances revealed by the proof, whether the engineman knew that the plaintiff was passing over the bridge or not, was such negligence as to require explanation or excuse from the defendants." The defendant insisted that no inference of negligence could be drawn from the facts. The Court of Errors and Appeals, in reversing a verdict of nonsuit given by the trial court said: "On a closer examination of the record we think there are two legal principles, which, singly or together, should have controlled the action of the learned trial justice on the motion to nonsuit. * * * The first is found in the maxim, 'res ipsa loquitur'-literally translated, "The thing itself speaks.' This principle is that when, through any instrumentality or agency under the management or control of a defendant or his servants, there is an occurrence, injurious to the plaintiff, which in the ordinary course of things would not take place if the person in control were exercising due care, the occurrence itself, in the absence of explanation by the defendant, affords prima facie evidence that there was want of due care."



In Mitchell v. N. C. & St. L. Ry. Co., inter alia, the court said: "A blowing (of an engine whistle) under a bridge is, in the absence of some special necessity therefor, an unnatural and reckless act likely to cause great damage. * The proof of such a blowing, * is sufficient to authorize a presumption of negligence. The onus is shifted, to explain and excuse or justify it, upon him who does it."



In Reed v. Penna. Railroad Company," it was held that evidence that a stove was left so improperly guarded as to become red hot, by reason of which loose waste and oil ignited and the fire thus started spread to another property, raised a presumption of negligence which was the duty of the defendant to rebut.

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In Excelsior Electric Co. v. Sweet, where the facts were that an overhead street lamp fell and frightened a horse, causing a runaway whereby plaintiff was injured; evidence was introduced that the lamp had been improperly put up, the Court, inter alia, said: "Where the testimony which proves that the occurrence by which the plaintiff was injured disclose circumstances from which the defendant's negligence is a reasonable inference, a case is presented which calls for a defense. In each of these cases in the absence of explanatory circumstances, negligence will be presumed, and the burden is on the defendant of showing ordinary care."

In Sheridan v. Foley, it was held that a contractor who is engaged in the erection of a building, is bound to take care to prevent materials which he is using from falling upon and injuring other persons who are at work about the building; and it will be presumed, from the mere happening of such an accident, in the absence of explanation by the contractor, that it occurred from want of reasonable care.

*100 Tenn. 328, 45 S. W. 337; 40 L. R. A. 426.

544 N. J. Law, 280; Currier & Bate, Cases on Torts, 541.

57 N. J. L. 224, 30 Atl. 552.

'58 N. J. L. 230, 33 Atl. 484.

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