Glidden v. Szybiak

• Decision Date: 05 January 1949
• Citation: 63 A.2d 233
• Parties: GLIDDEN v. SZYBIAK et al (two cases).
• Court: New Hampshire Supreme Court

63 A.2d 233

GLIDDEN

v.SZYBIAK et al (two cases).

Supreme Court of New Hampshire.

Jan. 5, 1949.

Exceptions from Superior Court, Hillsborough County; Leahy, Judge.

Actions at law by Elaine Glidden, by her mother and next friend, Priscilla Glidden, and by Harold Glidden against Louis Szybiak and others to recover for a dog bite sustained by first named plaintiff and for medical expenses incurred by her father. Verdicts for plaintiffs and defendants bring exceptions.

Judgment on the verdicts against defendant Jane Szybiak and judgment for defendant Louis Szybiak.

Actions at law under the provisions of R.L. c. 180, §§ 23, 24, to recover for a dog bite sustained by the plaintiff Elaine Glidden upon September 29, 1946, and for medical expenses incurred by her father, Harold Glidden. Trial by the Court, with verdicts for the plaintiffs. The plaintiff Elaine Glidden, who was four years old at the time of the occurrence here involved, left her home about noon on the day of her injury, to go to a neighborhood store for candy. On the porch of the store Elaine encountered a dog named Toby and engaged in play with him. She eventually climbed on his back and pulled his ears. The dog snapped at her and bit her nose, inflicting wounds for which a recovery is sought. She was treated by two physicians and a successful result obtained. Such scars as were left are ‘in no way disfiguring but discernible on close view.’ The dog Toby was owned by the defendant Jane Szybiak, an unmarried daughter of the other two defendants, 26 years of age at the time of the trial, living with her parents. The Court found that the defendant Louise Szybiak, although she exercised some care for the dog Toby, ‘was not the owner or keeper of the dog.’ The defendant Louis Szybiak, was found to be the head of the family at the time of the injury to Elaine Glidden. ‘He tolerated and permitted the dog to be in his household and to roam at will throughout the house’, and it was further found ‘that Toby was in possession of the defendant Louis within the meaning of the statute.’ To this finding the defendant excepted as being contrary to the evidence and unsupported by the evidence. The defendants also excepted to the denial of their motions for judgment at the close of the evidence. The Court also made the following finding: ‘Elaine is found to have been of such tender years as to be incapable of being guilty of contributory negligence in her conduct toward the dog Toby. If she was too young to be guilty of negligence, she cannot be found to have been guilty of a trespass or a tort at the time she received her injury.’ To this finding the defendants duly excepted.

A bill of exceptions was allowed by Leahy, J.

Philip J. Biron, of Manchester, for plaintiffs.

McLane, Davis, Carleton & Graf, of Manchester and Stanley M. Brown, of Manchester, for defendants.

BRANCH, Chief Justice.

The statute under which these actions were brought reads as follows: ‘23. Liability of owner. Any person to whom or to whose property damage may be occasioned by a dog not owned or kept by him shall be entitled to recover such damage of the person who owns or keeps the dog, or has it in possession, unless the damage was occasioned to him while he was engaged in the commission of a trespass or other tort.’

It is the contention of the defendants that the plaintiff Elaine was engaged in the commission of a trespass at the time of her injury and is, therefore, barred from recovery under the statute. The law in regard to a trespass to chattels is thus summarized in the Restatement of the Law of...