In America the right to exhibit wild animals is judicially recognized. The conducting of shows for the exhibition of wild animals is a lawful business. Such exhibitions are licensed everywhere. Municipalities frequently maintain zoos for the benefit of the public. The idea is no longer indulged that it is prima facie negligent to keep or exhibit wild animals. Plainly the doctrine is otherwise now. Hence the gist of modern actions against exhibitors cannot be the mere keeping of savage animals, but must be neglect to restrain them. Latterly, however, there seems to be a disposition upon the part of the authorities to hold the more reasonable rule, that all that should be required of the keeper of such animals is that he should take that superior caution to prevent their doing mischief which their propensities in that direction justly demand of him. Hence, if a right of action in such case depends on neglect to restrain, negligence must be alleged.
The patron attended the exhibitor's show. The exhibitor displayed an ape in a cage. The ape bit off part of the patron's index finger. The patron filed an affidavit that alleged the ape bit off part of his finger but failed to allege any negligence on the part of the exhibitor. The trial court quashed the affidavit of attachment. The patron appealed.
Whether negligence of the exhibitor to restrain wild animals must be alleged in order to hold him liable for tort.
Although there were many authorities that had stated in theory there was strict liability for the keeping of a wild animal, in actual practice the rule had evolved to require a wrongful act. Because the keeping of wild animals had become a common place and licensed activity, strict liability was no longer appropriate. The current rule required that the exhibitor be guilty of some negligence in the restraint of the wild animal. Because the affidavit failed to allege any negligence on the part of the exhibitor, it was fatally defective. Therefore, the trial court had properly quashed the affidavit.