Swain v. Tillett , 269 N.C. 46 ( 1967 )

152 S.E.2d 297 (1967) 269 N.C. 46

Rosalind Hayman SWAIN
v.
Elizabeth H. TILLETT, Administratrix of the Estate of Herman A. Tillett, Elizabeth H. Tillett, Individually, and Radford Tillett.

No. 32.

Supreme Court of North Carolina.

January 20, 1967.

Aydlett & White and Frank B. Aycock, Jr., Elizabeth City, for plaintiff.

Russell E. Twiford and John H. Hall, Elizabeth City, for defendants.

SHARP, Justice.

Defendants assign as error the failure of the court to sustain their respective motions for nonsuit. Radford Tillett contends that he has no responsibility for the deer's actions because he was not its owner. Mrs. Tillett contends that she has no liability since there is no evidence tending to show that she had any knowledge that the deer had developed any dangerous propensities. These contentions must be assayed against the following applicable principles of law:

"Certain animals ferae naturae may be domesticated to such an extent as to be classed, in respect of the liability of the owner for injuries they commit, with tame or domestic animals. * * * Thus, deer are subject to such substantial domestication as to come within this principle." 4 Am.Jur.2d, Animals § 83 (1962); 2 Kent, Commentaries 349 (1884). (The case was tried upon the theory that the Tillett deer was a tame deer, a domesticated animal.) To recover for injuries inflicted by a domesticated animal, domitae naturae, plaintiff must allege and prove: "(1) that the animal was dangerous, vicious, mischievous, or ferocious, or one termed in law as possessing a vicious propensity; and (2) that the owner or keeper knew or should have known of the animal's vicious propensity, character, and habits." (Emphasis added.) Sellers v. Morris, 233 N.C. 560, 561, 64 S.E.2d 662, 663; Plumidies v. Smith, 222 N.C. 326, 22 S.E.2d 713; Hill v. Moseley, 220 N.C. 485, 17 S.E.2d 676. See also Sink v. Moore and Hall v. Moore, 267 N.C. 344, 148 S.E.2d 265. "The gravamen of the cause of action in this event is not negligence, but rather the wrongful keeping of the animal with knowledge of its viciousness; and thus both viciousness and scienter are indispensible elements to be averred and proved." Barber v. Hochstrasser, 136 N.J.L. 76, 79, 54 A.2d 458, 460; 2 Strong, N.C. Index, Animals § 2 (1959).

The owner of an animal is the person to whom it belongs. The keeper is one who, either with or without the owner's permission, undertakes to manage, control, or care for the animal as owners in general are accustomed to do. 4 Am.Jur.2d, Animals § 92 (1962); 3 C.J.S. Animals § 165(b) (1936). It is apparent that a keeper may or may not be its owner. Janssen v. Voss, 189 Wis. 222, 207 N.W. 279. "The word `keep,' as applied to animals, has a peculiar signification. It means `to tend; to feed; to pasture; to board; to maintain; to supply with necessaries of life.'" Allen v. Ham, 63 Me. 532, 536. To keep implies "the exercise of a substantial number of the incidents of ownership by one who, though not the owner, assumes to act in his stead." Raymond v. Bujold, 89 N.H. 380, 382, 199 A. 91, 92. Accord, Lanna v. Konen, 119 Conn. 646, 178 A. 425.

At the time plaintiff was injured, Herman Tillett had been dead ten months, lacking three days. Although the record is silent as to the status of his estate, we assume that its administration had not then been completed. Pending the administration, title to the deer was in his administratrix, Mrs. Tillett. Spivey v. Godfrey, 258 N.C. 676, 129 S.E.2d 253. Plaintiff sued her both in her representative and individual capacity. Had the administration been completed, nothing else appearing, defendants would have owned the deer jointly. G.S. § 29-14(1). However, liability for injuries inflicted by animals, ferae naturae or domitae naturae, does not depend upon the ownership of the animal. "`The essence of the action is not ownership, but the keeping and harboring of an animal, knowing it to be vicious.' * * * Thus, the responsibility to respond in damages depends not upon who has legal title to the (animal) but rather upon the possessor of the animal." Hunt v. Hazen, 197 Or. 637, 639, 254 P.2d 210, 211. The keeper of an animal with known vicious propensities, nothing else appearing, is liable for injuries inflicted by it upon another. 3 C.J.S. Animals § 165 (1936).

The testimony of Radford Tillett (quoted in the statement of facts) is sufficient to establish that he and his mother were joint keepers of the deer. As the only child of a deceased father, he dutifully went every day to the old home to do for his widowed mother those things which needed to be done. Inter alia, he kept a watchful eye on the deer and the ponies. Sometimes he fed the deer; sometimes his children and Mrs. Tillett fed it. It was "a family appendage," cherished all the more because it had belonged to the deceased husband and father. Indubitably, it gave his grandchildren much pleasure and was of great interest to them. Radford spoke of it either as "our deer" or "my deer." He said, "We permitted the deer to live in the pasture as a whole after my father's death. * * *" When Billy Gray gave Radford plaintiff's message about a week before she was injured, he went immediately to investigate without mentioning the matter to his mother. He testified that when he found the deer where it was supposed to be, he "turned around and went on back home and never thought any more about it." After plaintiff was hurt, it was Radford who reported the matter to the Wildlife Protector. He said, "I called Mr. Forbes and told him that I had been notified that it was my deer" in the accident. It was Radford who put the deer in the inner stockade upon Mr. Forbes' instructions. In short, Radford assumed responsibility for the deer. He was, in both the ordinary and legal sense of the words, one of its two joint keepers. He and his mother exercised joint control over it. See Lanna v. Konen, supra.

Plaintiff's evidence was sufficient to establish that, a week before the accident, Radford had been notified that the deer had attacked her. "The rule is that as soon as the owner knows or has good reason to believe that the animal is likely to do mischief, he must take care of him; it makes no difference whether this ground of suspicion arises from one act or from repeated acts. Cockerham v. Nixon, 33 N.C. 269, 270. This rule is equally applicable to a keeper. The motion for nonsuit as to Radford, therefore, was properly overruled.

As to Mrs. Tillett, there is no evidence that she herself ever received any notice that the family's "tame deer" had developed vicious propensities. The ruling upon her individual motion for nonsuit depends upon whether notice to Radford was notice to her. The general rule is that notice of an animal's vicious propensities "to one joint keeper is notice to all such keepers." 4 Am.Jur.2d, Animals § 91 (1962). Accord, 3 C.J.S. Animals § 148(d) (2) (1936). In Barber v. Hochstrasser, supra, the defendants, husband and wife, jointly kept a dog which, to the wife's knowledge, had vicious propensities. The court held both liable, saying: "The custody of a vicious animal * * * is the custody of all joint keepers; and they are all jointly liable for the damage done by it. And, by the same reasoning, notice to one joint keeper is notice to all such." Id. 54 A.2d at 461. In Hayes et al. v. Smith, 15 Ohio Cir.Ct.R. 300, in holding the defendants liable to the plaintiff for injuries inflicted by a vicious dog, the court said:

"(W)e are of opinion that notice to one of the joint owners of the vicious propensities of an animal which is being kept and harbored jointly by them is notice to all, and, coming to consider the verdict upon the evidence, we do so with this rule in mind and giving it effect." Id. at 324.

It is generally held that notice to the wife of the vicious propensities of a dog which she and her husband kept jointly at their home is notice to the husband. Perazzo v. Ortega, 32 Ariz. 154, 256 P. 503; Smith v. Royer, 181 Cal. 165, 183 P. 660; Ayers v. Macoughtry, 29 Okl. 399, 117 P. 1088, 37 L.R.A.,N.S., 865; Benke v. Stepp, 199 Okl. 119, 184 P.2d 615; Halm v. Madison, 65 Wash. 588, 118 P. 755.

The knowledge required to hold the owner of an animal, possessed of vicious characteristics, responsible for injuries inflicted on another, need not be intimate personal knowledge. "Scienter may be sufficiently established by proof of knowledge on the part of those to whose care and management animals are intrusted as such knowledge is in law imputable to the owner." Benke v. Stepp, supra, 199 Okl. at 123, 184 P.2d at 619. Furthermore, notice to an agent, within the scope of his employment, is notice to the principal.

"Knowledge of the agent in reference to the matters of his agency, is the knowledge of his principal. This is a general principle in law, and applies to the owner of a vicious animal which he has committed to the care, control and agency of another, as well as to other matters in which an agent is employed." Corliss v. Smith, 53 Vt. 532, 535.

Accord, Gooding v. Chutes Co., 155 Cal. 620, 102 P. 819, 23 L.R.A.,N.S., 1071 (defendant's camel, known to its employee to be vicious, bit plaintiff; defendant held liable); Barber v. Hochstrasser, supra; Liberman v. Drill, 94 N.J.L. 387, 110 A. 694 (notice to son, who drove father's wagon, that horse was vicious; held, notice to the father); Benke v. Stepp, supra; Harris v. Carstens Packing Co., 43 Wash. 647, 86 P. 1125, 6 L.R.A.,N.S., 1164 (knowledge of driver of a vicious range steer imputed to defendant-owner).

In Stapleton v. Butensky, 188 A.D. 237, 177 N.Y.S. 18, defendant was held liable for injuries inflicted by his horse since "the jury was warranted in inferring that a horse thus manifesting this vicious propensity would also manifest it about the stable and on the occasions when he was under the observation of the owners or their servants, and that in the exercise of proper care they would have discovered it." In Brice v. Bauer, 108 N.Y. 428, 15 N.E. 695, the owner of a dog was held liable to the plaintiff who was bitten by it. The dog had previously bitten one of the servants to whose care the dog was entrusted. The court said, "It is not material that the fact was not communicated to the master." Id. at 697. In Clowdis v. Fresno Flume & Irrigation Co., 118 Cal. 315, 50 P. 373, the defendant's bull injured the plaintiff while its employees were driving it along a county road. The court said that knowledge of its ferocious disposition by the servant to whom an animal is entrusted is knowledge of the master and is sufficient to render the latter liable.

Radford was not only a joint keeper of the deer with Mrs. Tillett, he was also an agent to whose care she entrusted the deer. His knowledge of the deer's vicious propensities was, therefore, imputed to her. Her individual motion for nonsuit was properly overruled. The motion made in her representative capacity as administratrix, however, should have been allowed. The applicable law was succinctly stated, and authorities collected, by Ervin, J., in Brown v. Guaranty Estates Corp., 239 N.C. 595, 602-603, 80 S.E.2d 645, 651-652, 40 A.L.R. 2d 1094:

"As a general rule, the estate of a decedent cannot be held liable for torts which an administrator or an executor commits in administering the estate. In consequence, an action will not ordinarily lie against an administrator or an executor in his representative capacity for such torts * * * (citations omitted) * * The rule is subject to this exception: Where the estate of a decedent actually receives assets acquired by an administrator or an executor by a tortious act, the party wronged thereby and entitled to such assets may hold the estate responsible to the extent of the value of such assets. * * * An administrator or an executor is personally liable for his own torts even though they are committed in the administration of the estate."

See Annot., Liability of estate for torts of executor, administrator, or trustee, 44 A.L.R. 637 (1926); 127 A.L.R. 687 (1940).

If not entitled to a nonsuit, defendants contend that they are entitled to a new trial for the exclusion of their proffered evidence relating to the habits or propensities of wild deer. Defendants' theory—and their defense—is that the animal which injured plaintiff, if a deer, was a wild deer; that their deer could not have been the culprit because he was never out of his pound. In order to contradict plaintiff's statements that "a wild deer won't run you," "won't go in a house," and "will run the minute he smells you," defendants offered the testimony of Mrs. Tom Beacham that she had been chased by a big wild buck when she attempted to run him and several does out of her front yard. Plaintiff's statements with reference to the habits of wild deer were made on cross-examination in an attempt to refute defendant's suggestion to her that the deer which had attacked her was not the Tillett deer but a wild buck. Obviously, if wild deer never attack humans, it was not a wild deer which had injured plaintiff. We hold, therefore, that it was material and competent for defendants to show that wild deer did, on occasions, attack people. How better to do this than by the evidence of one who herself had been attacked by a wild deer? The exclusion of Mrs. Beacham's proffered testimony was prejudicial error.

The State Wildlife Protector for Dare County, Foster Forbes, who had observed deer, both tame and wild, in Dare County for five years, was sworn as a witness for defendants, who propounded the following questions to him:

1. "Q. Have you an opinion satisfactory to yourself as to whether or not only a tame deer will, under given circumstances, attack or attempt to attack a human being?

"A. Yes.

2. "Q. Will you please express that opinion?

Objection — Sustained — EXCEPTION #10.

(If permitted, witness would have answered: "I will say under given circumstances one is as apt to attack as the other.")

3. "Q. Based on your training, knowledge, observation and experience of deer, have you an opinion satisfactory to yourself as to what would be indicated if a deer were frothing at the mouth?

"A. Yes.

4. "Q. Please give us that opinion?

Objection — Sustained — EXCEPTION #11.

(If permitted, the witness would have answered: "Probably it would be from being chased by dogs and extensive running or overheating, and probably rabies or something like that.")"

A witness qualified to speak on the subject may testify as to the habits of animals whether ferae naturae or domitae naturae. Congress and Empire Spring Co. v. Edgar, 99 U.S. 645, 25 L. Ed. 487. In that case, expert witnesses, called by the plaintiff, gave it as their opinion that the male deer in the fall of the year is a dangerous animal. On appeal, it was contended that the plaintiff's "experts" had not been properly qualified. To this the court said, "Even if the witnesses are not properly to be regarded as experts, the court is of the opinion that the testimony was properly admitted as a matter of common knowledge."

In 7 Encyclopaedia Britannica 165, we find the following:

"Most deer are shy and furtive although the larger species are dangerous opponents and should not be approached closely even when tamed.

"Especially in the rutting season deer are likely to be unpredictable. * * * Deer attack with either antlers or hooves, impaling with the former and slashing with the latter."

Although we are not prepared to take judicial notice of the habits of deer, we think any person having this special knowledge may testify concerning their characteristics and reactions just as to any other fact within his knowledge. In Forsythe v. Kluckhohn, 161 Iowa 267, 142 N.W. 225, the court approved the admission of testimony by "witnesses claiming experience or expert knowledge" of bull terriers as to the effect a muzzle was likely to have upon dogs of that breed and also as to their disposition and characteristics. See Shelby Iron Co. v. Morrow, 209 Ala. 116, 95 So. 370; Clinton v. Howard, 42 Conn. 294; Roman v. St. Louis and S. F. Railway Co., 120 Kan. 585, 245 P. 115. See also Jeffords v. Albemarle Waterworks Co., 157 N.C. 10, 72 S.E. 624.

"The conduct or habits of animals, and the conditions or emotions of which they are in whole or in part a reaction may be stated in a shorthand way, by one who has observed them, although they were not observed under the same conditions as existed at the time in question." 32 C.J.S. Evidence § 546(8) (1964).

The grounds for plaintiff's objection to the excluded questions and answers of Mr. Forbes do not appear in the record. The second question, as well as the answer to it, was based upon an assumption of "given circumstances," which were not explained. The ambiguity of the question justified the court's ruling. The fourth question called for an opinion requiring expertise in the physiology of deer and was therefore "the exclusive province of the expert." Stansbury, N.C. Evidence, § 132 (2d Ed. 1963). Mr. Forbes was not tendered as an expert and apparently his Honor thought that he had not been sufficiently qualified. The exclusion of this opinion, therefore, was not error. Its admission, however, likewise would not have been error. Teague v. Duke Power Co., 258 N.C. 759, 764, 129 S.E.2d 507, 511.

Because of the exclusion of the testimony of Mrs. Beacham, there must be a

New trial.

PLESS, Justice (dissenting).

The evidence upon which the son of a recently widowed mother is held to be a "keeper" of the deer is (1) he visited her daily (2) he helped her with her chores, including sometimes feeding the deer (3) so did his children (4) he spoke of it as "my" or "our" deer.

He lived a half mile from his mother and had never kept the deer at his home.

I believe the result penalizes a son who does nothing more than a dutiful child should do for his bereaved mother.

I dissent.