Dickerman v. Consol. Rt. Co.

• Decision Date: 03 January 1907
• Citation: 79 Conn. 427,65 A. 289
• Court: Connecticut Supreme Court
• Parties: DICKERMAN v. CONSOLIDATED RT. CO.

65 A. 289

79 Conn. 427

DICKERMAN

v. CONSOLIDATED RT. CO.

Supreme Court of Errors of Connecticut.

Jan. 3, 1907.

Appeal from City Court of New Haven; Albert McC. Mathewson, Judge.

Action by Hubert L. Dickerman against the Consolidated Railway Company to recover the value of a dog alleged to have been negligently killed by defendant. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Harry G. Day and Elliot Watrous, for appellant. Louis M. Rosenbluth, for appellee.

HALL, J. The complaint alleges that on February 14, 1906, the plaintiff was the owner of a dog of the value of $100, and that while said dog was lawfully on Alden avenue, in the city of New Haven, and on the tracks of the defendant's street railway, and in the care of the plaintiff's servant, the defendant negligently ran its car upon said dog and killed it To this complaint the defendant demurred, upon the grounds, among others, that, under the law of this state, no action lies for the negligent killing of a dog, and that it did not appear that the dog had been registered and had upon its neck a collar, as required by statute, nor that it was under the age of six months. The court overruled this demurrer. Upon the trial of the case to the jury, the plaintiff having offered evidence to prove that the dog killed was a bulldog about two years old and was killed as alleged in the complaint the defendant in substance requested the court to charge the jury (1) that the plaintiff had no right of action in this state for such killing of the dog; and (2) that, if it appeared that the dog was more than six months old, the plaintiff was not entitled to recover unless it appeared that the dog had been registered and had a collar upon its neck marked as required by statute. The court did not so charge, but instructed the jury, in substance, that the dog, even though it was not registered and licensed, was entitled to be upon the public street and was "not a trespasser in any sense, if it was upon the railroad tracks" of the defendant; that, if the defendant was guilty of negligence, it was liable for the death of the dog, unless the person in control of the dog was guilty of negligence, and that the measure of damages was the value of the dog, not exceeding the sum of $100 claimed in the complaint. The jury returned a verdict for the plaintiff for $50 damages.

Section 4481 of the General Statutes of 1902, as amended by chapter 6, p. 6, of the Public Acts of 1903, provides that "every person who shall steal or confine and secrete any registered dog or any dog under the age of six months, or who shall unlawfully kill or injure any such dog shall be liable to the owner in a civil action, and shall be fined not more than two hundred dollars, or imprisoned not more than six months, or both." If the dog in question was over the age of six months and was not registered, clearly the defendant was not liable to the plaintiff in a civil action, unless such right of action was given by some other law than this statute. The plaintiff claims that he had such a property in the dog at common law that he can maintain this action. The trial court in its rulings as above stated apparently sustained this claim. But the question which is decisive of this case is not what property in dogs their owners or keepers formerly had under the common law, but what property rights in them are recognized and protected by our present law, and which, upon these questions, is largely statutory. From an early period in our history our Legislature, and our towns by authority of the Legislature, have, for the protection of person and property from injury by dogs, passed laws and adopted regulations providing upon what conditions, and under what circumstances, dogs might be owned and kept, and what property rights in them would be protected, and by such legislation the ancient common-law rules upon these subjects have been materially changed.

The following are some of the statutes which have been enacted regarding the owning and keeping of dogs: As early as 1765 an act was passed authorizing the town authorities to make all necessary rules and regulations for confining, restraining, and killing dogs within such towns as they should judge reasonable for the effectual security of the inhabitants, and providing that all dogs not confined and restrained within such rules and orders might be killed by any person. In 1798 it was enacted that dogs permitted to go at large should wear a collar with the name of the owner thereon, and his place of residence, and that any dog found at large, with or without the permission of the owner, without such collar might be killed. In 1829 towns were empowered to tax dogs, and any person was authorized to kill any dog the tax levied upon which the owner had refused to pay. An act of 1853 empowered the inhabitants of any town to offer a bounty for the destruction of any dog not kept in conformity with all legal regulations for keeping, taxing, licensing, and restraining dogs. In 1856 it was enacted that owners of dogs should cause them to be registered, numbered, and collared, and should pay an annual tax on them; that any person might kill any unregistered dog running at large; that it should be the duty of sheriffs and constables to cause such dogs to be destroyed; and that any person killing or maiming such registered and collared dog without justifiable cause should be liable in an action of trespass for the reasonable value of the dog. In 1864 selectmen were directed to offer a bounty to any person for the...