59 N.J.L. 112 | N.J. | 1896
The opinion of the court was delivered by
This action was brought by Wood, the plaintiff below, against the prosecutors, Nierenberg and Zukugman, jointly, to recover compensation for damages done by two dogs, one owned by Nierenberg and the other by Zukugman, in trampling down and destroying certain cabbage plants, beans, &c., which were growing in Wood’s close. The property was all destroyed at the same time, the two dogs uniting-in committing the mischief, and a judgment was entered in the court below against the prosecutors by which each was-made responsible for the whole of the injury done.
The theory upon which the suit was tried and judgment rendered seems to have been that, as the loss suffered by the-plaintiff was the result of the joint act of the two dogs, their respective masters stood in the same position, so far as liability to respond for the damage done was concerned, as if they personally had broken and entered the plaintiff’s close and destroyed his growing plants.
But the reason which makes one who personally aids in or abets the wrong done by another liable for the whole amount of the injury done, does not apply in a case like that under-consideration.
A similar view is expressed in Van Steenburgh v. Tobias, 17 Wend. 562; Auchmuty v. Ham, 1 Denio 495; Partenheimer v. Van Order, 20 Barb. 479; Adams v. Hall, 2 Vt. 9; Buddington v. Shearer, 20 Pick. 477, and Denny v. Correll, 9 Ind. 73.
Nor does the fact that there may be difficulty in ascertaining thé quantum of damáge done by each dog afford any ground for holding their owners jointly liable. As was said' in Van Steenburgh v. Tobias, supra, the difficulty of such
The liability of the prosecutors in this case, for the mischief done by their respective dogs, was a separate and not a joint one, and the plaintiff, in order to recover for the loss which he had sustained, should have brought actions against each of them for so much of the injury as was caused by the dog which he owned. By doing so he would have been fully indemnified, for the recovery in an action against one owner would have been no bar to the action against the other.
The judgment of the Court of Common Pleas should be set aside.