Anderson v. Middlebrook

• Decision Date: 23 June 1909
• Citation: 202 Mass. 506,89 N.E. 157
• Parties: ANDERSON v. MIDDLEBROOK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

202 Mass. 506

89 N.E. 157

ANDERSON v. MIDDLEBROOK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 23, 1909

COUNSEL

Brown Field & Murray and Elias Field, for plaintiff.

Samuel R. Cutler and Harry W. James, for defendants.

OPINION

LORING J.

The only question presented by this bill of exceptions is whether the jury were warranted in finding that the dog which bit the plaintiff was kept jointly by both defendants on July 8 1907, the day in question.

The defendant Middlebrook testified that before May, 1905 certain dog kennels called the 'Revere Collie Kennels,' had been located by him on premises owned by him, and on that day he had sold all the dogs and the good will of the business done there under the name of the Revere Collie Kennels to the defendantEllen Johnson, 'who was in the employ of his (Middlebrook's) wife'; that after that date the dogs were kept on the same premises owned by Middlebrook; that Middlebrook had accompanied the dogs to various dog shows where the dogs were exhibited, and that he had accepted the fee for service of one of the dogs; and that the defendant Johnson also took the fee for service when she was about.He also testified that he had bought food for the dogs.It is true that Middlebrook testified that he never had received any benefit or profit from any dogs kept on the premises since the sale in 1905; that when he took the dogs to shows it was done as a favor to the defendant Johnson; and that the fee for service received by him was turned over to her and the food bought by him was bought for the defendant Johnson.But the defendant having been called by the plaintiff as an adverse witness under the statute(Rev. Laws, c. 175, § 22), the plaintiff was not bound by his testimony (Emerson v. Wark,185 Mass. 427, 70 N.E. 482), and so the jury could accept the facts testified to by him and disbelieve the explanations (Hankinson v. Lynn Gas & Electric Co.,175 Mass. 271, 56 N.E. 604).

There was also evidence that both defendants had been seen walking together accompanied by a group of dogs, including the dog that bit the plaintiff, and that the defendant Middlebrook had been seen feeding the dog in question.It was in evidence further that the kennels had been carried on under the same name, to wit, Revere Collie Kennels, since the date of the bill of sale.

The defendant Johnson, to whom Middlebrook made the bill of sale of the Revere Collie...