Boylan v. Everett

• Decision Date: 07 January 1899
• Citation: 52 N.E. 541,172 Mass. 453
• Parties: BOYLAN v. EVERETT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 453

52 N.E. 541

BOYLAN v. EVERETT et al.

Supreme Judicial Court of Massachusetts, Norfolk.

January 7, 1899

This was an action of tort to recover damages for injury caused by the bite of a dog which was not owned by defendants, but was the property of their nephew, who boarded with defendants. In the superior court the plaintiff asked the court to rule: First. That on the facts the only question for the jury was as to damages. Second. That "the keeper of a dog is one who harbors it exercises control over it, although to be a keeper of a dog it is not necessary that one should have the whole or entire control of it, and there may be several keepers of the same dog"; and that "where a person allows a dog to be on his premises, occasionally feeding and petting it sometimes calling and commanding its obedience, or simply permitting the dog to be one of the family, he is then the keeper of the dog, and becomes liable for damages caused by it." Third. "It is for the jury to say whether they believe the plaintiff has shown by a fair preponderance of all the evidence that the defendants had some control and custody over the dog. If they did, they are responsible for him as keepers." Fourth. "If the dog belonged to defendants' nephew, and he kept it on the defendants' premises with their consent, and they did anything to maintain or keep him, gave him food, or protected him, or provided for him in any way, they would be, in the sense of the law, keepers of the dog." The court refused to give the rulings as requested. The jury found for defendants, and plaintiff excepted.

COUNSEL

T.E. Grover and J. Hewins, for plaintiff.

P.H. Cooney, for defendants.

OPINION

LATHROP J.

The bill of exceptions in this case does not state that it contains all of the evidence material to the issue involved, and the question whether the defendants were the keepers of the dog, within Pub.St. c. 102, § 93, was a question of fact for the jury. Barrett v. Railroad Co., 3 Allen, 101; Collingill v. City of Haverhill, 128 Mass. 218; McLaughlin v. Kemp, 152 Mass. 7, 25 N.E. 18; Whittemore v. Thomas, 153 Mass. 347, 26 N.E. 875; O'Donnell v. Pollock, 170 Mass. 441, 49 N.E. 745. The first instruction requested was, therefore, rightly refused.

The first part of the second instruction requested was given in substance. We do not think that the judge was required to give the last part of this request, as matter of law. "The mere fact that a dog is kept by its owner on the premises of another, with the knowledge or acquiescence or permission of the owner of such premises, does not of itself make the owner of said premises the keeper of the dog." Whittemore v. Thomas,...