Dorman v. Carlson

• Citation: 137 A. 749,106 Conn. 200
• Court: Supreme Court of Connecticut
• Decision Date: 06 June 1927
• Parties: DORMAN v. CARLSON.

137 A. 749

106 Conn. 200

DORMAN v. CARLSON.

Supreme Court of Errors of Connecticut.

June 6, 1927

Appeal from Superior Court, New Haven County; Isaac Wolfe, Judge.

Action by Fred L. Dorman against John D. Carlson to recover damages for personal injuries from the bite of a dog. Verdict and judgment for defendant, and plaintiff appeals. No error.

Charles S. Hamilton, of New Haven, for appellant.

Thomas R. Robinson and Kenneth Wynne, both of New Haven, for appellee.

Argued before WHEELER, C.J., and CURTIS, MALTBIE, HAINES, and HINMAN, JJ.

WHEELER, C.J.

This action is brought under section 3404 of the General Revised Statutes, which reads as follows:

" When any dog shall do any damage, either to the body or property of any person, the owner or keeper, or, if the owner or keeper be a minor, the parent or guardian of such minor, shall be liable for such damage, except where such damage shall have been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort."

The plaintiff requested the court to instruct the jury that under this statute the owner or keeper of a dog would be liable for any and all damage done by the dog unless the person injured was at the time committing a trespass or tortious act which would cause a loss to the owner or keeper of the dog; that, while an owner or keeper may use a dog to protect his premises from trespassers or others who are doing injury on them, he will be responsible for all damage done by his dog on the public highway to any person who is not trespassing or doing injury upon the property of the owner or keeper. The plaintiff assigns as error the failure of the court to so instruct the jury, and in instructing the jury that, if they found, in accordance with the special defense that when the plaintiff was bitten by defendant's dog he was annoying and kicking the dog, the verdict should be for the defendant.

Prior to the decision in Kelley v. Killourey, 81 Conn 320, 70 A. 1031, 129 Am.St.Rep. 220, 15 Ann.Cas. 163, the statute was in the terms above quoted, with the omission of the exception. The generality of its terms when interpreted literally, furnished justification for the contention that it made the owner or keeper of a dog liable for all damage done under any circumstances by it to the body or property of any person. We, however, held in this decision that this was not the true intent and meaning of the statute that it did admit of exceptions, one of which was injury done by a dog in the protection of his master's premises against the perpetration of a felony, another, when the person injured by the dog had provoked the dog by conduct which he either knew or ought to have known would be " calculated to rouse a dog to defensive action by the use of its natural weapons of defense." Subsequent to this decision in 1908, the statute was amended in 1911 (Pub. Acts 1911, c. 121, § 5), by incorporating the exception found in the present statute. The primary legislative purpose, as we conceive it, was to conform the statute to the interpretation placed upon it by this court and to include every form of exception within its general terms, trespass or tort. The language of the exception is...