Kelley v. Killourey

• Decision Date: 29 October 1908
• Citation: 81 Conn. 320,70 A. 1031
• Court: Connecticut Supreme Court
• Parties: KELLEY v. KILLOUREY.

70 A. 1031

81 Conn. 320

KELLEY

v. KILLOUREY.

Supreme Court of Errors of Connecticut.

Oct. 29, 1908.

Appeal from Superior Court, New London County; George W. Wheeler, Judge.

Action by Timothy F. Kelley, administrator, against Daniel F. Killourey, for personal injuries resulting in death, alleged to have been occasioned by the bite of a dog. Judgment for defendant, and plaintiff appeals. No error.

The answer contained the general denial and a special defense in substance that the intestate's injuries were received in consequence of his treatment of the dog, in that he was at the time wrongfully, willfully, and persistently annoying, hurting, torturing, and provoking it, whereby it was angered and provoked, and thereby caused to bite.

Donald G. Perkins, for appellant.

Gardiner Greene and Jeremiah J. Desmond, for appellee.

PRENTICE, J. It was a conceded fact that the plaintiff's intestate was bitten by a dog owned and kept by the defendant. Relying upon section 4487 of the General Statutes of 1902, the plaintiff requested the court to instruct the jury, in substance, that upon that state of facts alone, and altogether regardless of any conduct on the intestate's part which was instrumental in his being bitten, the plaintiff was entitled to a verdict for the resulting damage, and also that the defendant could not avail himself of any defense of contributory negligence on the intestate's part. The latter request was complied with. The other was not. On the contrary, the jury were told that certain conduct of the intestate inducing the act of the dog would be a bar to the plaintiff's recovery. The statute in question is general in its terms, embodies no exceptions, and, when interpreted literally, furnishes justification for the plaintiff's contention that it renders an owner or keeper of a dog liable for all damage done under any circumstances by it to the body or property of any person. Such, however, is not its true intent and meaning. "The letter of a law is not in all cases a correct guide to the true sense of the law maker." Statutes general in their terms are frequently construed to admit implied exceptions. Ryegate v. Wardsboro, 30 Vt. 746; State v. Audette (Vt.) 70 Atl. 833; Church of Holy Trinity v. United States, 143 U. S. 457, 12 Sup. Ct. 511, 36 L. Ed. 226. So statutes defining the liability of owners or keepers for the acts of dogs and couched in unrestricted language similar to that employed in the one under review have been repeatedly held to embody implied limitations. Plumlcy v. Eirge, 124 Mass. 57, 58, 26 Am. Rep. 645; Quimby v. Woodbury, 63 N. H. 370, 374; Peck v. Wiliams, 24 R. I. 583, 587, 54 Atl. 381, 61 L. R. A. 351. The first two of these cases admit the defense of contributory negligence. We have not gone so far. But in Woolf v. Chalker, 31 Conn. 121, 132, 81 Am. Dec. 175, it was observed that the unrestricted language of the statute was not to be interpreted as admitting of no exceptions so that the owner of a dog who had done efficient service for his master in protecting his premises against the perpetration of a felony would be liable to the felon for the consequences to the latter's person. The long existing rights incident to such a situation were recognized as creating an implied limitation upon the operation of the statute which in the literal interpretation of its terms took away those rights in so far as the agency of a dog was concerned. This same case recognizes scarcely less distinctly the necessity for another and more pertinent exception. Page 131 of 31 Conn. (81 Am. Dec. 175). Quoting a statement of Lord Camden in May v. Burdett, 9 Ad. & El. N. S. 101, the court adds: "And it would seem that, if the plaintiff have knowledge of the ferocity of the animal and provoke him willfully, he should be considered to have purposely brought the injury on himself and left to bear it, although the owner of the dog be in the wrong in keeping him." Here is stated with approval the central idea of a principle which has had frequent acceptation and is founded in sound reason. Peck v. Williams, 24 R. I. 583, 587, 54 Atl. 381, 61 L. R. A. 351; Muller v. McKeason, 73 N. Y. 195, 201, 29 Am. Rep. 123; Fake v. Addicks, 45 Minn. 37, 39, 47 N. W. 450, 22 Am. St. Rep. 716; Brooks v. Tyler, 65 Mich. 208, 211, 31 N. W. 837; Hott v....