044-NLR-NLR-V-02-JACOBS-v.-PERERA.pdf
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JACOBS v. PERERA.D. C., Colombo, 67,619.
1876.
December 19.
Before Anderson, C.J., and Stewart and Clarence, J.J.December 19, 1876.
Brute animal-^-Injury done by a dog of mischievous habits—Liability ofowner.
Wh-.re a person quietly going along a public road is attacked andbitten by a dog, its owner is liable to. pay him the daxnage so sus-tained, if it be proved that the animal is one of mischievoushabits, that is, of so vicious and savage a disposition that it was■ improper for the owner to allow it to go at large in a public place.
n^HE facts of the case and the points of law therein raisedappear in the following judgment of Berwick, D.J.:—
“ The plaintiff, who is a locomotive foreman, was attacked andbitten by the defendant’s dog near its master’s -house, whenquietly going along a public road to his daily avocations, andwithout his or any one else having given the dog any provocation.He was laid up in consequence tor a month and sustained damagethereby to the extent of £26, viz., £15 in his ordinary earningsand £10 in consequence of delayed promotion in his Department,and £1 in medicines. He received medical attendance gratui-tously from his departmental surgeon.
“ There is no doubt of the liability of the owner of the dog tomake some redress to the plaintiff, but the question has beenraised as to the nature and amount of the- redress due in pointof law.
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1876.
December 19.
“ Another question, which is one oi fact, has been raised, namely,whether the animal was one of “ mischievous habits ”—an,expres-sion which in the present case must be taken as meaning of sovicious and savage a disposition that it was improper for thedefendant to allow it to go at large in a public place. If it wasso, there can he no doubt that the owner was guilty of, and res-ponsible for, fault or negligence in allowing the animal to be looseon the publio road, and must pay the whole value of thedamage occasioned; and he cannot evade this liability by eithergiving up the animal or its mere value; our Roman-Dutch Lawhaving preserved, with only a few modifications, the spirit of theRoman Law on the subject as contained in the titles notedbelow ;* and this has been expressly recognized by our SupremeCourt in the case of Folkard v. Anderson, C. R., Jaffna, 25,869,Leg. Misc. for 1860, p. 49.
“ I am satisfied on the evidence that ,the dog is not one of suchmischievous habits as are above referred to, or at least has notbeen proved to be so.
“ The animal has been produced in Court: seems an honest dog,one not to be trifled with, perhaps, in the execution of its duty,and one which suspicious linkers and trespassers would be shyof, but well intentioned and trusty, and looks as if it merited thehigh character given of it by its master, viz., an excellent watchdog, fierce in the execution of its duty of protecting its owner’s'property, but otherwise harmless, gentle, and easily led by womenand children. It would be very illogical and manifestly unjust tojudge of the “ habits ” of either man or dog from a single isolatedact either of misconduct or mistake, and that the very act whichgives rise to the question (though there can be no doubt that inthis particular case the dog did misjudge the plaintiff veryerroneously and took some very fanciful offence at his appearance),and I do not think that any adequate evidence has been givento entitle one to judge unfavourably of its general “ habits ” fromthe other instance alleged of supposed savageness. Two witnesses—coolies—have been called to prove similar previous attacks.One has proved that once when he was passing the defendant’sgate (which he is in the habit of doing every day) the dog “ rushedat him,” witness adds, “ to bite ” him, but the defendantcalled the dog off and no harm was done. I do not thinkmuch of this, for many dogs—and certainly a vast number
* De Lege Aquilia (as to which see Pand. lib. 21, tit. 1, s. 12 ; and Just.Voet ad Pand. Kb. 9, tit. 2, particu- Inst., Kb. 4, tit. 9. See also Voetlarly s. 11 et seq.), and De Aedilito Kb. 9, tit. 1, s. 6, and end of s. 9).edieto (as to which see Voet ad. –
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of those we see at native hots—have a way of feigning to ranafter aiyl barking at persons passing their doors, without reallymeaning mischief; and the cooly^s own cowardice may very likelyhave exaggerated the dog’s intentions and his own danger (as wesee every day at our own houses), and may even have aggravatedthe dog’s humour to give him a fright. Had it really meantmischief, it would not have left him at once on being called off.
1876.
December 19.
“ The other witness, Nalle Cannoo, does speak of having beenactually bitten by it; but that was when the witness was insideits master’s premises, and when the dog probably thought he hadno business to be there. He is a bill collector, who had gone toget payment of some money, and passed close to where the dog(which is a dog of intelligence) was chained; and it sprang athim. That was three years ago. He has been there fifty or sixtytimes since then, but has never been bitten since. He has learnedthe maxim Gave canem. And we have not heard of any oneelse having been bitten or attacked by it. If we had distinctor repeated instances of the dog, when off duty and on the publicroad, attacking innocent wayfarers from mere surliness or viceof disposition, it would then unquestionably be characterised as ofmischievous "habits,” and the owner would be guilty of gravenegligence in allowing it to go at large or to accompany him onhis walks without its being muzzled or chained and led ; but Ido not think I have evidence before me to justify me in givingthis dog so bad a name. In fact, the present case of the plaintiffseems the only instance worth being seriously considered, andtherefore no evidence of “ habits” as distinguished from the veryact which is the ground of the claim—the amount of which claim,or rather the nature of the redress due from its owner, the lawmakes to depend, not on the special delict in question, but on theanimal’s previous and confirmed disposition.
" It does not, however, in my opinion follow from this findingof fact that the plaintiff should have judgment for less than thefull amount of damage and loss sustained by him. It has been -urged for defendant that where neither mischievous “ habits ” onthe part of the deg are proved, nor any fault or negligence is imputa-ble to the defendant, the liability is limited.to the value of.the animal which did the injury; and an opinion to this effectwas certainly expressed in the judgment of the Supreme Courtin the case of Folkard v. Anderson.
“ If there had been a series of decisions to the same effect, oreven if the point had been expressly considered and determinedby the Supreme Court in a case in which it became necessary to
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1879.
December 19.'
decide it, I should feel constrained to follow such decision- Butin that case the dogs then in question were expressly found to beof mischievous habits, and consequently the question of limitationof the defendant’s liability in that case to the value of the animalscould not be, and was not, decided; and the plaintiff hadjudgment for the full damage claimed on the express ground oftheir proved savage habits. As that opinion therefore as to thenature of the liability in the case of non-taischievous habits wasa mere obiter dictum, and given in a solitary case (for there i3 noother in our reports), I feel myself justified in considering thequestion of law an open one to be decided in this, the very firstcase, in which it has become absolutely necessary to determine it.
“ Now, I fully agree with the judgment in considering that theliability is limited ; but the question is in what way is it limited ?Is the limit of liability, the right of the owner of the animalto give it up'if he please to the party injured, and on suchsurrender to be discharged from all further claim ? Or is thelimit of liability the money value of the animal which did theinjury ? Now, I do not think that any authority whatever can beproduced for the last view, though propounded in the case ofFolkardv. Anderson.
“ The decision in that cas'e rightly proceeded on the principlethat the Roman-Dutch Law on the subject was in force, and Voet
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in lib. 9, tit. 1, after dealing in section 6 expressly with the case ofinjuries by dogs, refers in section 9 to a difference between theRoman and Dutch Laws as to the class of injuries for which damageis recoverable, and concludes.the whole title with the words : “ Butaccording to modem usages these [viz., disfigurement, scar, andpain] are also to be taken into account in estimating the damages[as well as the costs of cure and loss of employment], the rest ofthe Roman Law however remaining intact among us, even tothe extent of the liberty to surrender the delinquent animal (noxa)and subsequent discharge from further liability.*
“Without any question, the rule of the Roman Law was tocondemn a defendant in the noxal action to pay the full damageor surrender the noxa, as it was called, and be then absolvedfrom any further liability; and he had his choice which ofthese he would do. There is not a word in the Roman Law abouthis paying the value of the animal. There is a manifest differencebetween surrendering the delinquent brute and being con-demned to pay its value; and (speaking with great respect)
* Vinnius questions this in his him in his Commentary on theCom. ad. Inst. 4,' 9, J. But same text, and he is opposed byGroenwegen expressly corrects Grotius and Voet.
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the Supreme Court seems (naturally enough) to have fallen info 1876.a misapprehension mid to have overlooked a distinction which wasnot th’en immediately before that Court as it is here. I cannotfind a single passage in the Roman Law to give colour to the latterview (i.e., condemnation to pay the value of the delinquent animal),and all the texts are explicitly the other way. These willbe found most conveniently arranged in Pothier’a Pandects,in which compare lib. 9, lit. 1, No. 1, at the text Si quadrwpes(where the word noxa means the delinquent carpus ’and noxia■ the damage done*); and Nos. 9 and 10 of same title and lib. 9,lit. 4, No. 24 (3 Quaestio est, an is, &c., at the end)f and No. 30.
As already shown, the Roman Law is the Dutch Law on this point.
“ The judgment will therefore be that the defendant do pay tothe plaintiff the full amount of damages proved, namely, Rs. 260,unless he forthwith surrender to the plaintiff the dog in question,in which case he will be discharged from further liability. – Heis not bound to pay the value of the animal. On the other hand,the plaintiff cannot insist on having the value of the animal, andif he refuse to accept the dog when tendered to him, the defen-dant will be absolved from further claim.
“ As, however, the action for redress is properly brought againstthe defendant, and he had not tendered the noxa before suit,defendant must pay plaintiff the costs of the action.”
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The plaintiff appealed from that portion of the above judgmentwhich decreed that on the defendant surrendering to him the dogin question he should be discharged from , further liability, andprayed that the Supreme Court do enter an absolute decree in hisfavour for Rs. 265, being the full amount of damage claimed.
In appeal, Layard, for plaintiff, appellant.
•. S. Grenier, for defendant, respondent.
The following judgment of the Supreme Court was deliveredon the 19th December, 1876 :—
The plaintiff in this action sues for the recovery of damageslaid at Rs. 300 occasioned by his having been bitten by a dogalleged to be of a fierce and mischievous nature.
* It sometimes means the delict or acceptance by the litigant partiesmaleficium.from the praetor of an issue o.
f The expression post acceptum fact to be tried on evidence by thenoxale judicium which occura jddex after the praetor had deter-throughout Article III. refers to mined the law applicable to thethe old Roman procedure, and the case and the issue to be determined.
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1876. The defendant in hiB answer, admitting to be the owner of theDecember it. animal, denied that the dog was of a fierce and mischievous nature,and further especially pleaded that the plaintiff by his own fiaiscon-duot provoked an attack from the dog.
On the pleadings the case went to trial, and the learned DistrictJudge, though holding on the evidence that the plaintiff in no waygave the dog any provocation, was of opinion that the dog was notproved to be of mischievous habits.
We agree with the learned District Judge on the first of theabove points, but come to a different conclusion as respects thesecond point. It appears to us that the plaintiff sufficientlyestablished that the dog was of vicious and fierce habits. Thedog is pot only pfoved to have savagely and without provocationattacked the plaintiff, but there is in addition distinct and un-deniable evidence of his having bitten another man, alsounprovokedly, and further having attempted to bite a thirdunder like circumstances—evidence, in our opinion, quite suffi-cient to support the contention of the plaintiff.
In the view we have taken of the facts it becomes unnecessaryto consider either whether it was open to the defendant upon theissues raised in the pleadings to tender the dog to the plaintiff, orwhether, according to the Roman-Dutch Law as in operation inCeylon, the making over of the noxa is sufficient under the circum-stances stated by the learned District Judge to deprive aperson bitten by a dog of compensation in money for theinjuries sustained by him, and, whether willing or-no, that hemust be content with the very brute that attacked and woundedhim.
It will be seen that in the case of Folkard v. Anderson the SupremeCourt in dealing with the legislation of Rome and Holland onthe subject as applicable to Ceylon, put the value of theanimal in the place of the animal itself.
The damages being proved to amount to Rs. 260, it is adjudgedand decreed that the plaintiff do recover from the defendant thesum of Rs. 260 and costs of suit.