This is an action on the case[[275]] to recover the value of a horse alleged to have been injured by the defendant’s horse, and comes forward on exceptions to the rulings of Goodenow, J.
The plaintiff introduced evidence tending to prove that at night, on the 13th of September, 1855, he put his horse into his field well and uninjured. The next morning, September 14, his horse and the defendant’s were together in his, the plaintiff’s close, the defendant’s horse, having, during the night, escaped from the defendant’s enclosure, or from the highway, into the close of the plaintiff, and that the plaintiff’s horse was severely injured by the defendant’s horse, by kicking, biting, or striking with his fore feet, or in some other way, so that he died in a few days after.
The defendant requested the presiding judge to instruct the jury that to entitle the plaintiff to recover against the defendant he must prove, in addition to other necessary facts, that the defendant’s horse was vicious, and that the defendant had knowledge of such viciousness prior to the time of the alleged injury. The presiding judge declined giving these instructions, and directed the jury that if they should find that the defendant owned the horse alleged to have done the injury to the plaintiff’s horse, and if, at the time of the injury, he had escaped into the plaintiff’s close, and was wrongfully there, and while there occasioned the injury, and that the horse died in consequence, that the plaintiff would be entitled to recover the value of the horse so injured. That it was not necessary for the plaintiff to prove that the horse was vicious, or accustomed to acts of violence towards other animals or horses, or that the owner had notice of such viciousness or habits.
The jury returned a verdict for the plaintiff.[[276]]
Davis, J. There are three classes of cases in which the owners of animals are liable for injuries done by them to the persons or the property of others. And in suits of such injuries the allegations and proofs must be varied in each case, as the facts bring it within one or another of these classes.
1. The owner of wild beasts, or beasts that are in their nature vicious, is, under all circumstances, liable for injuries done by them. It is not necessary, in actions for injuries by such beasts, to allege or prove that the owner knew them to be mischievous, for he is conclusively presumed to have such knowledge; or that he was guilty of negligence in permitting them to be at large, for he is bound to keep them in at his peril.
“Though the owner have no particular notice that he did any such thing before, yet if he be a beast that is ferae naturae if he get loose and do harm to any person, the owner is liable to an action for the damage.” 1 Hale, P. C. 430.
“If they are such as are naturally mischievous in their kind, in which the owner has no valuable property, he shall answer for hurt done by them, without any notice; but if they are of a tame nature, there must be notice of the ill quality.” Holt, C. J. Mason v. Keeling, 12 Mod. R. 332.
“The owner of beasts that are ferae naturae must always keep them up, at his peril; and an action lies without notice of the quality of the beasts.” Rex v. Huggins, 2 Lord Raym. 1583.
2. If domestic animals, such as oxen and horses, injure any one, in person or property, if they are rightfully in the place where they do the mischief, the owner of such animals is not liable for such injury unless he knew that they were accustomed to do mischief. And in suits for such injuries, such knowledge must be alleged, and proved. For unless the owner knew that the beast was vicious he is not liable. If the owner had such knowledge he is liable.