On appeal from the First District Court of the city of Paterson.
For the plaintiff-respondent, M. Metz Cohn.
For the defendant-appellant, Edward A. Markley and Patrick F. McDevitt.
Before Justices Lloyd, Case and Donges.
The opinion of the court was delivered by
CASE, J. Plaintiff sued for injuries received from the bite of a dog belonging to the defendant. Knowledge on the part of the defendant, technically known as scienter, of the alleged vicious propensities of the dog was specifically alleged in the state of demand, and the denial thereof by defendant's attorney at the opening made that the main issue. There was evidence pro and con. At the close of the trial the court's entire charge to the jury was as follows:
"Ladies and gentlemen of the jury, it is up to you to decide this case. Be guided by the evidence and nothing else. If you think that the plaintiff is entitled to damages, you should give them to him; if not, your verdict should be for the defendant. I will say nothing more."
The jury then retired. Defendant's attorney forthwith requested the court to charge the jury on the fundamental principles of law dealing with scienter. The court refused to charge the jury thereon. Exception was taken to the refusal.
Subsequently plaintiff's attorney requested that chapter 427 of the laws of 1933 be read to the jury, whereupon the judge, accompanied by both counsel and the stenographer, entered the jury room and read to the jury that statute as follows:
"The owner of any dog which shall bite any person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of such dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness. A person is lawfully upon the private property of such owner within the meaning of this act when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States of America, or when he is on such property upon the invitation, express or implied, of the owner thereof."
The action of the court in that respect was also excepted to on behalf of defendant. Verdict went for the plaintiff and from the judgment thereon defendant appeals, presenting four points, of which the second is that the court erred in refusing to charge the jury the law with regard to scienter, and the third is that the court erred in reading the abovementioned statute to the jury.
Scienter was an essential element in the case, made so both by the issue specifically presented and by the fundamental law. Angus v. Radin, 5 N.J.L. 815; Emmons v. Stevane, 77 Id. 570; Eberling v. Mutillod, 90 Id. 478. That fact is so obvious that no charge, if it undertook to instruct the jury at all upon the law of the case, could well omit reference to the subject. Whether the directing of the court's attention to the omission should have been made before the jury retired is not of importance for the reason that the judge did, as we have observed, thereafter present himself to the jury and make a further charge in other respects. The court was thus in the posture of having been silent upon the ...