Griffin v. Fancher

• Decision Date: 08 May 1941
• Citation: 127 Conn. 686,20 A.2d 95
• Court: Connecticut Supreme Court
• Parties: GRIFFIN v. FANCHER.

20 A.2d 95

127 Conn. 686

GRIFFIN v. FANCHER.

Supreme Court of Errors of Connecticut.

May 8, 1941

Appeal from Town Court of Manchester, Hartford County; Raymond E Bowers, Judge.

Action by George Griffin against Morris C. Fancher for the killing of plaintiff's dog by defendant's automobile brought to the Town Court of Manchester, and tried to the court. From a judgment for the plaintiff, defendant appeals.

No error.

John E. Gallivan, of Hartford, for appellant (defendant).

Jay E Rubinow, of Manchester, for appellee (plaintiff).

Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS JJ.

ELLS Judge.

The question is whether the owner of a registered dog may maintain an action for damages against one who unintentionally but negligently kills or injures the animal.

A preliminary issue requires brief discussion. The defendant claims that the subordinate facts found do not reasonably support the trial court's conclusions as to negligence and proximate cause. The defendant, while driving his automobile at a reasonable speed on his right hand side of Woodland Street in Manchester, ran over and killed a dog standing on the shoulder of the road at the edge of the traveled portion. The defendant did not see the dog and was unaware of its presence until he felt a bump caused by the right wheel or wheels of his car passing over it. The dog belonged to the plaintiff, was duly licensed, and was worth $100. We cannot say, upon the facts found, that the court was in error in concluding that the defendant was negligent in failing to maintain a proper lookout and in failing to observe the dog, and that such negligence was the proximate cause of the death of the animal.

The plaintiff claims he has a right of action both at common law and by statute. We have had many cases involving injuries by dogs, but none having to do with negligent injury to a registered dog. In Dickerman v. Consolidated Ry. Co., 79 Conn. 427, 429, 65 A. 289,8 Ann.Cas. 417, the plaintiff claimed he had such a property in an unregistered dog at common law that he could maintain an action for its negligent injury. The trial court sustained this claim, but we held the decisive question was 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, which upon these questions was largely statutory; that because existing statutes required dogs over six months old to be registered, and made unregistered dogs outlaws by making it a misdemeanor to keep or harbor them, required selectmen to search them out and prosecute those owning and harboring them, and provided that they could be killed by any constable or policeman, no person has such property in them as will enable him to maintain an action for their value against one who unintentionally but negligently kills them. In that case we were dealing with the negligent killing of an unregistered dog and did not find one decision upon common law principles. We did say (79 Conn. page 431, 65 A. page 290,8 Ann.Cas. 417) that: ‘ Although at common law the stealing of a dog was regarded as such an invasion of a property right as would amount to a civil injury, redressible by a civil action (2 Bl. Comm. 393), it may be questioned whether one who, through mere negligence, killed a dog was liable to the owner in damages, or whether the provisions of our present statute rendering one liable both civilly and criminally for stealing, confining, secreting, or unlawfully killing or injuring a registered dog were intended to apply to any other than a willful or wanton killing or injuring.’ There the status of the dog as property has rested until the present time, so far as decision by this court is concerned.

In 2 Am.Jur., Animals, § 7, it is stated: ‘ At the present day, there exists a noticeable able tendency to eliminate the inconsistencies of the old rules and, both in legislation and judicial decisions, to recognize a full and complete property in dogs'; and in § 93: ‘ But it has been denied that he [the owner] could at common law maintain an action on the case for an unintentional, though negligent, destruction or injury * * * though at the present time it is very well settled that such actions or actions upon such theory are maintainable, provided the defendant's negligence is the proximate cause of plaintiff's loss.’ Among the many cited cases is Lacker v. Strauss, 226 Mass. 579, 116 N.E. 236, L.R.A.1917F, 434, which holds flatly that at common law the owner of a dog, licensed or unlicensed, may maintain an action for damages for its wilful or negligent killing or injury. The Massachusetts court briefly discussed our Dickerman case, supra, in which the circumstances are dissimilar because of statute law.

Our common law is constantly in process of gradual but steady evolution. Because of more enlightened modern conceptions of the nature of dogs as animals and their value and status as property, we now decide, consonant with the weight of modern authority, that by our common law there is a right of action against one who negligently kills or injures them, at least if they are properly registered.

The remaining questions are whether our existing statutes also give such right of action, and if they do not, whether they change the common-law rule and preclude such right. In 1933 our legislature, in Chapter 189, re-enacted and to a certain extent rewrote our statute law concerning dogs. Provisions pertinent to this case require dogs over six months old to be registered and a license fee paid which shall be in lieu of any tax on dogs of the value of $100 or less; a dog warden may take into custody any dog not having a license tag or plate on its collar and impound it; after certain specified notice and under specified circumstances he may mercifully kill it. Section 1377c, Cum.Sup., 1935, as amended by section 1119e, Cum.Sup.1939, reads as follows: ‘ Any person who shall steal, confine or...