Andrews v. Jordan Marsh Co.

Decision Date25 May 1933
Citation283 Mass. 158,186 N.E. 71
PartiesANDREWS v. JORDAN MARSH CO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Suffolk County; N. P. Brown, Judge.

Action by Adelina Andrews against the Jordan Marsh Company. Verdict for plaintiff, and defendant brings exceptions.

Exceptions sustained. Judgment for defendant.

C. B. Cross and B. Morton, both of Boston, for plaintiff.

K. C. Parker, of Boston, for defendant.

FIELD, Justice.

This is an action of tort to recover compensation for injuries resulting to the plaintiff from being bitten by a dog while she was in the defendant's department store. There was a verdict for the plaintiff. The defendant excepted to the denial of its motion for a directed verdict and to parts of the charge.

There was evidence that the plaintiff on January 12, 1927, was bitten by a dog when she as a customer of the defendant was in the basement of the ‘annex’ to the store, a part of the store intended for the use of customers. It is agreed that the dog had rabies and that the plaintiff required the usual Pasteur treatment.

There was no evidence, and it is not contended, that the defendant or any of its agents or servants was the owner or keeper of the dog. There was testimony that it wore no collar or other sign of ownership and was not on leash. According to the testimony the dog was eighteen or twenty inches long and from eight to twelve inches high. The only evidence bearing upon its presence in the store before it bit the plaintiff was the testimony of the defendant's personnel manager that he saw a dog, resembling this dog in size, moving along ahead of him through a tunnel used by customers leading from the basement of the main building of the defendant's store to the basement of the ‘ANNEX,’ AND THAT THIS DOG WAS ‘APPARENTly with a lady’; he was ‘very positive that it belonged to the lady.’ This witness testified that this dog was not on leash, but he could not say whether it had a collar. It could have been found that the plaintiff was bitten within a few minutes after this witness saw the dog in the tunnel.

There was no evidence that the defendant or any of its agents or servants knew before he occurrence that the dog which bit the plaintiff had rabies or a disposition to bite or was dangerous in any other respect, and no evidence that there was anything in its appearance or actions before it bit the plaintiff to indicate that it was diseased or otherwise dangerous. And there was no such evidence in regard to the dog which the personnel manager saw in the tunnel.

There was testimony from the defendant's employees that it had a department on the second floor of the annex in which it sold ‘things for dogs,’ and that frequently people brought their dogs into the store ‘to have a collar fitted or to buy a leash’ or ‘for one reason or another,’ that dogs were frequently seen in the store, particularly in the ‘annex,’ ‘because they are on the way to the dog department,’ and that the dogs seen in the store were sometimes on leash, but sometimes without either leashes or collars. It could have been found that the defendant had given no orders with respect to the admission to the store of dogs not on leash. There was evidence from which it could have been found that the defendant was conducting an extensively advertised sale, and expected more trade and business than usual, and that the basement at the time the plaintiff was bitten ‘was fairly well crowded.’

A verdict for the defendant should have been directed.

The liability of the defendant is to be determined according to the common law. It could not have been found that the defendant was the owner or keeper of the dog so as to be subject to the liability imposed by statute upon owners and keepers of dogs for injuries caused by their dogs. G. L. (Ter. Ed.) c. 140, § 155; Maillet v. Mininno, 266 Mass. 86, 89, 165 N. E. 15. Indeed a count of the declaration under this statue was waived.

The plaintiff can recover only upon proof of breach of the defendant's duty to keep the premises in safe condition for her use as a customer. Kennedy v. Cherry & Webb Co., Lowell, 267 Mass. 217, 219, 166 N. E. 562. Reasonable care to keep the premises safe for customers from harm caused by animals is within the scope of this duty. Goodwin v. E. B. Nelson Grocery Co., 239 Mass. 232, 132 N. E. 51;Cruickshank v. Brockton Agricultural Society, 260 Mass. 283, 157 N. E. 357;Bottcher v. Buck, 265 Mass. 4, 163 N. E. 182;Wilson v. Norumbega Park Co., 275 Mass. 422, 176 N. E. 514. The action is grounded upon negligence, but there was no negligence unless the plaintiff's injury, though in its precise form unforeseeable, was in its general nature a probable consequence of some act or omission for which the defendant was responsible. Perlman v. Burrows, 270 Mass. 182, 184, 169 N. E. 897. See, also, Sponatski's Case, 220 Mass. 526, 530, 531, 108 N. E. 466, L. R. A. 1916A, 333;Goodwin v. E. B. Nelson Grocery Co., 239 Mass. 232, 132 N. E. 51.

It could not have been found that the plaintiff's injury was the result of any act or omission for which the defendant was responsible, apart from its omission to exclude the dog from the store or, in lieu thereof, to restrain it so that it could not injure a customer. The defendant did not incite the dog to injure the plaintiff (compare Zink v. Foss, 221 Mass. 73, 108 N. E. 906) or so control its actions that such injury resulted. Compare Wilson v. Norumbega Park Co., 275 Mass. 422, 176 N. E. 514. It was, therefore, essential to the plaintiff's case to prove that harm to some person standing in the same general relation to the defendant as the plaintiff of the same general character as that which came to the plaintiff was a probable consequence of the presence of the dog in the store under the circumstances shown. See Ogden v. Aspinwall, 220 Mass. 100, 103, 104, 107 N. E. 448. Such proof has not been made.

Dogs are regarded by the common law as ordinarily harmless animals. Mason v. Keeling, 12 Mod. 332, 335; Domm v. Hollenbeck, 259 Ill. 382, 385, 386, 102 N. E. 782, Ann. Cas. 1914B, 1272. Apart from statute even an owner or keeper of a dog, as our cases recognize, is not liable for bodily injuries inflicted by it in the absence of proof that he knew, or at least should have known, its dangerous propensities (Pressey v. Wirth, 3 Allen, 191;Le Forest v. Tolman, 117 Mass. 109, 19 Am. Rep. 400;Galvin v. Parker, 154 Mass. 346, 348, 28 N. E. 244; see, also, Webber v. McDonnell, 254 Mass. 387, 389, 150 N. E. 189) and in the absence of proof of some fault of such owner or keeper. The principle extends to dangerous qualities due to canine disease though perhaps, in view of the serious nature of the potential harm, a lesser degree of proof of notice of such qualities would suffice to charge the owner or keeper with responsibility. See Buck v. Brady, 110 Md. 568, 73 A. 277,132 Am. St. Rep. 459;Elliott v. Herz, 29 Mich. 202;Clinkenbeard v. Reinert, 284 Mo. 569, 225 S. W. 667, 13 A. L. R. 485;Legault v. Malacker, 156 Wis. 507, 145 N. W. 1081. See, also, Hawks v. Locke, 139 Mass. 205, 208, 1 N. E. 543,52 Am. Rep. 702. The statutes imposing liability on an owner or keeper of a dog for injuries caused by it irrespective of knowledge of its individual dangerous propensities (G. L. [Ter. Ed.] c. 140, § 155) and directing police officers and constables and permitting other persons to kill dogs which are not licensed and collared as required by statute (G. L. [Ter. Ed.] c. 140, § 151), though based upon a recognition of the existence of a risk of injury by dogs (see Blair v. Forehand, 100 Mass. 136, 140, 141,97 Am. Dec. 82, 1 Am. Rep. 94;Riley v. New England Telephone & Telegraph Co., 184 Mass. 150, 153, 68 N. E. 17), do not affect the principles of the common law applicable to dogs in cases outside the scope of those statutes. See Baer v. Tyler, 261 Mass. 138, 158 N. E. 536. Moreover, it did not appear that the dog was of a kind the keeping of which is prohibited by statute. See G. L. (Ter. Ed.) c. 140, §§ 140-144. Where, as in the present case, no statute intervenes the liability for bodily injuries caused by dogs falls within the general principles governing liability for injuries caused by animals ordinarily harmless. Compare Goodwin v. E. B. Nelson Grocery Co., 239 Mass. 232, 132 N. E. 51;Fraser v. Cahpman, 256 Mass. 1, 4, 152 N. E. 44;Greeley v. Jameson, 265 Mass. 465, 471, 164 N. E. 385.

There was no evidence, and it was not matter of common knowledge, that the presence in the store of a dog having no dangerous propensities was a probable source of harm to customers or other persons in the store. And this is true though such dog was not restrained. No statute, in the absence of facts not here shown (see G. L. [Ter. Ed.] c. 140, §§ 157, 158, 163, 164), and no order or ordinance,so far as the evidence shows, requires dogs in Boston to be kept on leash or otherwise restrained (see G. L. [Ter. Ed.] c. 140, §§ 167, 173), and we need not consider the effect of such a statute, order or ordinance. Nor could the inference that the dog was a probable source of harm be drawn from the fact, which could have been found, that it was not collared-though that fact might subject it to the liability of being killed legally, G. L. (Ter. Ed.) c. 140, § 151-or from the nature of the defendant's building, the character of its business, or the number...

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    • December 3, 1959
    ...5 Cir., 61 F.2d 1001.11 Gallagher v. Kroger Grocery & Baking Co., supra, 272 S.W. loc. cit. 1006; Andrews v. Jordan Marsh Co., 283 Mass. 158, 186 N.E. 71, 72(2), 92 A.L.R. 726, 729; Goodwin v. E. B. Nelson Grocery Co., 239 Mass. 232, 132 N.E. 51, 53(7); Pally v. F. W. Woolworth & Co., 194 M......
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    ...principles. In the absence of a controlling statute, we revert to the application of common-law principles. Andrews v. Jordan Marsh Co., 283 Mass. 158, 162, 186 N.E. 71 (1933) (if "no statute intervenes, the liability for bodily injuries caused by dogs falls within the general principles go......
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    ...controlling statute. See Audette v. Commonwealth, 63 Mass. App.Ct. 727, 736, 829 N.E.2d 248 (2005). See also Andrews v. Jordan Marsh Co., 283 Mass. 158, 162, 186 N.E. 71 (1933) (if "no statute intervenes, the liability for bodily injuries caused by dogs falls within the general principles g......
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