Baer v. Tyler

• Decision Date: 18 October 1927
• Citation: 158 N.E. 536,261 Mass. 138
• Parties: BAER v. TYLER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

261 Mass. 138

158 N.E. 536

BAER

v.TYLER.

Supreme Judicial Court of Massachusetts, Hampden.

Oct. 18, 1927.

Report from Superior Court, Hampden County; William A. Burns, Judge.

Action of tort by Alta M. Baer against Pauline B. Tyler to recover for killing of plaintiff's dog by a dog belonging to defendant.Verdict for plaintiff was set aside, and verdict entered for defendant under right reserved, and case reported.Judgment for plaintiff.

Raymond T. King, of Springfield, for plaintiff.

George F. Leary, George D. Cummings, and Charles V. Ryan, Jr., all of Springfield, for defendant.

CARROLL, J.

This is an action of tort to recover damages because of the killing of the plaintiff's dog by the defendant's dog.The answer alleged that the plaintiff's dog was not duly licensed according to law.The jury assessed damages in the sum of $654.The judge reserved the right to set the verdict for the plaintiff aside, and after entering a verdict for the defendant, he reported the case to this court.

It was agreed that the plaintiff's dog was not licensed; that while upon a public street, under the control of the plaintiff's agent, and held by a leash, it was attacked and killed by the defendant's dog.The report states that the sole defense relied on was that the plaintiff's dog ‘was unlicensed and uncollared, as is provided for by law, at the time when said injuries occurred.’

[1] At common law, there is no absolute property in a dog, the property right therein is a qualified one, Blair v. Forehand, 100 Mass. 136, 140,97 Am. Dec. 82, 1 Am. Rep. 94; but a dog, at common law, is property for an injury to which an action will lie, Cummings v. Perham, 1 Metc. 555;Uhlein v. Cromack, 109 Mass. 273, 275.‘The general rule, supported by the weight of authority, is that an owner of a dog, licensed or unlicensed, may maintain an action for damages against any person or corporation willfully or negligently killing or injuring the animal.’Lacker v. Strauss, 226 Mass. 579, 581, 116 N. E. 236, 237(L. R. A. 1917F, 434).

[2] Regulations are now to be found in the statutes concerning dogs; and by G. L. c. 140, § 151, any person may kill or cause to be killed a dog not ‘licensed and collared’ as required by law ‘whenever or wherever found.’This statute has been held to be constitutional.Blair v. Forehand, supra;Morewood v. Wakefield, 133 Mass. 240.This statute, relied on by the defendant, is in derogation of the right of property and should be strictly construed.Commonwealth v. Beck, 187 Mass. 15, 72 N. E. 357.SeeCummings v. Perham, supra;Heisrodt v. Hackett, 34 Mich. 283, 22 Am. Rep. 529.

In Hagerstown v. Witmer, 86 Md. 293, 37 A. 965,39 L. R. A. 649, where an ordinance providing for the summary destruction of dogs running at large was under consideration, it was said at page 304(37 A. 967) that an ordinance of this kind ‘should be construed liberally in favor of the owners of dogs, * * * and it ought not to be extended beyond what is absolutely required by its terms.’The Maine statute, giving the right to police officers or constables to kill unlicensed dogs, was held in Lacker v. Strauss, supra, not to be extended to a private person who negligently ran over and killed the plaintiff's unlicensed dog.SeeSmith v. St. Paul City Railway, 79 Minn. 254, 82 N. W. 577.

[3] Under a Michigan statute permitting any person and requiring every officer to kill unlicensed or uncollared dogs, it was held where the plaintiff's unlicensed dog was killed by the defendant's dog that the statute afforded no justification to the defendant.Heisrodt v. Hackett, supra.In the the course of that opinion this language was used:

‘We cannot say that where the Legislature has authorized persons to kill dogs found running at large contrary to the act, the authority thus given to persons can by construction be so enlarged as to embrace animals also.The Legislature, undoubtedly, in adopting this statute, contemplated that at least some judgment would be exercised by the person before killing the dog; that he would take some steps to ascertain whether the dog was licensed and collared before killing him, and if found not properly licensed and collared, then for that reason and that alone he should be killed.No such judgment or discretion...