Le Forest v. Tolman

• Decision Date: 27 January 1875
• Parties: Ernest Le Forest v. John C. Tolman
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

117 Mass. 109

Ernest Le Forest v. John C. Tolman

Supreme Court of Massachusetts

January 27, 1875

Middlesex. Tort, under the Gen. Sts. c. 88, § 59, to recover double the amount of the damage sustained from the bite of a dog.

At the trial in the Superior Court, before Aldrich, J., it appeared that the plaintiff was bitten and injured by the defendant's dog at Pelham, in the State of New Hampshire where the plaintiff lived with his father and mother; that the defendant was a resident of Dracut, in this Commonwealth and had a place of business in Lowell, and kept his dog at Dracut and at his place of business in Lowell; that the day the injuries complained of were done, the defendant's dog strayed away from his owner into New Hampshire, and was seen several times in the neighborhood of the plaintiff's residence; that the next day the plaintiff's father received the dog and carried him to the defendant at his place of business in Lowell. Upon this state of facts, the defendant asked the judge to rule that the action could not be maintained, which the judge declined to do. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.

Exceptions sustained.

C. A. F. Swan, for the defendant.

G. Stevens & W. H. Anderson, for the plaintiff.

Gray, C. J. Ames & Endicott, JJ., absent.

OPINION

Gray, C. J.

In order to maintain an action of tort, founded upon an injury to person or property, and not upon a breach of contract, the act which is the cause of the injury and the foundation of the action must at least be actionable or punishable by the law of the place in which it is done, if not also by the law of the place in which redress is sought. Smith v. Condry, 1 How. 28; S. C. 17 Pet. 20. The China, 7 Wall. 53, 64. Blad's case, 3 Swanst. 603. Blad v. Bamfield, Ib. 604. General Steam Navigation Co. v. Guillou, 11 M. & W. 877. Phillips v. Eyre, L. R. 4 Q. B. 225, 239, and L. R. 6 Q. B. 1. The Halley, L. R. 2 Adm. 3, and L. R. 2 P. C. 193. Stout v. Wood, 1 Blackf. 71. Wall v. Hoskins, 5 Ired. 177. Mahler v. Norwich & New York Transportation Co. 35 N.Y. 352. Needham v. Grand Trunk Railway, 38 Vt. 294. Richardson v. New York Central Railroad, 98 Mass. 85.

In the case at bar, the injury sued for was done to the plaintiff in New Hampshire by a dog owned and kept by the defendant in Massachusetts. Such an action could not be maintained at common law, without proof that the defendant knew that his dog was accustomed to attack and bite mankind. Popplewell v. Pierce, 10 Cush. 509. Pressey v. Wirth, 3 Allen 191. No evidence of such knowledge, or of the law of New Hampshire, was introduced at the trial. Nor is it contended that the defendant would be liable to any action or indictment by the laws of that state.

The plaintiff relies upon the statute of this Commonwealth, which provides that "every owner or keeper of a dog shall forfeit to any person injured by it double the amount of the damage sustained by him, to be recovered in...