Canavan v. George

• Decision Date: 31 October 1935
• Citation: 198 N.E. 270,292 Mass. 245
• Parties: CANAVAN v. GEORGE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

292 Mass. 245

198 N.E. 270

CANAVAN v. GEORGE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

October 31, 1935

Exceptions from Superior Court, Suffolk County; Donahue Judge.

Tort action by Bernard Canavan against Charles George and another. Verdict for plaintiff for $2,500, and defendants bring exceptions.

Exceptions overruled.

J. M. Graham, of Boston, for plaintiff.

P. H Kelley, of Boston, for defendants.

FIELD Justice.

This is an action of tort brought under G. L. (Ter. Ed.) c. 140, § 155, which is as follows: ‘ The owner or keeper of a dog shall be liable in tort to a person injured by it in double the amount of damages sustained by him.’ See now St. 1934, c. 320, §§ 18, 34. The declaration alleged in part that the defendants (Charles George and John George) ‘ were the owners or keepers of a dog which dog attacked and bit the plaintiff.’ At the close of the plaintiff's evidence he was permitted, subject to the defendants' exception, to amend his declaration by striking out the words ‘ attacked and bit,’ in the phrase quoted, and substituting therefor the word ‘ injuries.’ The trial judge ruled in substance, at the request of the defendants, that the plaintiff could not recover unless ‘ the defendants were the joint owners or * * * were joint keepers of the dog.’ Compare Maillet v. Mininno, 266 Mass. 86, 88, 89, 165 N.E. 15. He denied the defendants' motion for a directed verdict in their favor and refused certain rulings requested by them, and the defendants excepted. There was a verdict for the plaintiff and a special finding that the defendants were joint owners and joint keepers of the dog which injured the plaintiff.

First. The motion for a directed verdict was denied rightly.

The evidence warranted a finding that the plaintiff was injured by being struck on the leg by a dog which ran by him so that he fell upon the pavement. The defendants contend (a) that under G. L. (Ter. Ed.) c. 140, § 155, damages are recoverable for personal injury only where the injury results from ‘ an assault, attack or bite of the dog,’ and that the evidence in this case did not show that injury sustained by the plaintiff so resulted, and (a) that the evidence did not warrant a finding that the defendants were the joint owners or the joint keepers of the dog which injured the plaintiff.

1. G. L. (Ter. Ed.) c. 140, § 155, in terms is broad enough to impose liability for a personal injury caused by a dog in the manner disclosed by the evidence. This statute has remained substantially unchanged since its provisions were enacted in St. 1812, c. 146, § 3 (see St. 1791, c. 38, § 4; St. 1797, c. 53, § 5; St. 1798, c. 54, § 3). Many cases arising under the statute have been decided by this court. However, neither these cases nor the history, context and apparent purpose of the statute lead to the conclusion that the statute is to be narrowed by interpretation to exclude liability for injury caused in the manner disclosed.

A dog is regarded by the common law as ordinarily harmless. And at common law the owner or keeper of a dog, himself free from negligence or other fault, is not liable for personal injuries caused by such dog unless they resulted from some extraordinary, dangerous propensity which was known, or should have been known, to the owner or keeper. Andrews v. Jordan Marsh Co., 283 Mass. 158, 161, 162, 186 N.E. 71, 92 A.L.R. 726, and cases cited. But it is settled that G. L. (Ter. Ed.) c. 140, § 155, does not merely increase the damages recoverable at common law for an injury caused by a dog. It creates a new and different cause of action. Somers v. Broderick, 281 Mass. 550, 553, 184 N.E. 165. Proof that the owner or keeper of a dog causing personal injury was negligent, or otherwise at fault, or knew, or had reason to know, that the dog had any extraordinary, dangerous propensity, or even proof that the dog in fact had any such propensity, is not essential to recovery of damages under the statute. Pressey v. Wirth, 3 Allen, 191; LeForest v. Tolman, 117 Mass. 109, 110,19 Am.Rep. 400; Galvin v. Parker, 154 Mass. 346, 348, 28 N.E. 244; Riley v. Harris, 177 Mass. 163, 165, 58 N.E. 584; Riley v. New England Telephone & Telegraph Co., 184 Mass. 150, 153, 68 N.E. 17. And the intent of the dog is immaterial. The act causing the injury may have been done ‘ in a playful mood.’ Hathaway v. Tinkham, 148 Mass. 85, 88, 19 N.E. 18, 19. As was said in the case last cited, the ‘ Legislature imposes upon owners and keepers of dogs a responsibility for their acts, irrespectively of any question of their intent.’ And it was stated in Sherman v. Favour, 1 Allen, 191, 192, 193, with respect to the statute (then Rev. St. c. 58, § 13), that it ‘ is general in its terms, and was doubtless intended to provide a remedy co-extensive with the mischief, which any person might sustain by reason of any act of a dog, which occasioned injury to him or his property,’ though it was intimated that there might be no liability for ‘ injury caused by the mere presence or passing of a dog, when no act is done or attack made by him; as, for instance, where a horse is frightened merely by seeing a dog lying or running in the street,’ since in ‘ such case, the dog would be only the passive cause of the injury.’ See, also, Searles v. Ladd, 123 Mass. 580. The distinction here made is that sometimes described as a distinction between the cause and a condition of the injury.

Though in many of the cases decided by this court there was evidence that the plaintiff was injured by being bitten by a dog, the liability imposed by the statute is not limited to injury so caused. See Sherman v. Favour, 1 Allen, 191; Denison v. Lincoln, 131 Mass. 236; Williams v. Brennan, 213 Mass. 28, 99 N.E. 516. Nor, as the cases just cited show, is actual contact of the dog with the person injured essential to recovery. It is true that in some of the cases here decided (see, for example, Sherman v. Favour, 1 Allen, 191, 192, 193; Munn v. Reed, 4 Allen, 431, 433; Denison v. Lincoln, 131 Mass. 236, 238; Raymond v. Hodgson, 161 Mass. 184, 185, 36 N.E. 791) the words ‘ assault,’ ‘ attack’ or ‘ demonstration of attack’ were used as descriptive of a ground for liability. But clearly the word ‘ assault’ was not used in its technical sense. See Am. Law Inst. Restatement: Torts, § 21. And in Sherman v. Favour, 1 Allen, 191, 193, it was pointed out that there might be liability though there was no ‘ actual assault.’ Nor does the word ‘ attack’ as used in the cases imply that intention to harm or any particular kind of act on the part of the dog is essential to liability. See Sherman v. Favour, 1 Allen, 191, 193; Hathaway v. Tinkham, 148 Mass. 85, 88, 19 N.E. 18. This word and the words ‘ demonstration of attack’ are particularly significant in cases where there is no contact of the dog with the person injured. See Denison v. Lincoln, 131 Mass. 236, 238. They import that the act of the dog must be a cause and not merely a condition-or ‘ passive cause’ -of the injury. See Sherman v. Favour, 1 Allen, 191, 193; Williams v. Brennan, 213 Mass. 28, 99 N.E. 516. But the use of the words ‘ assault,’ ‘ attack’ or ‘ demonstration of attack’ does not imply that a case in which, as here, the evidence warrants a finding of contact of a dog with a person, caused by the act of the dog and resulting in injury to the person, is excluded from the application of the statute.

The terms of the statute are not narrowed in meaning by the use of the word ‘ assault’ in related statutes. See G. L. (Ter. Ed.) c. 140, §§ 156-159. On the contrary there is more reason for thinking that the use of the word ‘ assault’ in these sections and its omission from section 155 show that it was not intended that section 155 should be limited to injuries resulting from assaults. The provisions of G. L. (Ter. Ed.) c. 140, §§ 156-159, were first enacted in substance in St. 1791, c. 38. That act was entitled ‘ an Act...