Koller v. Duggan

• Decision Date: 25 June 1963
• Citation: 346 Mass. 270,191 N.E.2d 475
• Parties: Maude S. KOLLER v. Adele S. DUGGAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 475

191 N.E.2d 475

346 Mass. 270

Maude S. KOLLER v. Adele S. DUGGAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 7, 1963.

Decided June 25, 1963.

Charles W. O'Brien, Boston, for defendants.

Walter J. Hurley, Boston (Vincent J. Cosgrove, Dorchester, with him), for plaintiff.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK and REARDON, JJ.

REARDON, Justice.

The plaintiff who sustained personal injuries as a result of a dog bite brought this action of tort under G.L. c. 140, § 155, as amended through St.1934, c. 320, § 18. The case is before us upon the defendants' exceptions to the denial of their requests for rulings, to the finding for the plaintiff, and to the denial of their motion for a new trial.

An auditor found the following facts. On February 18, 1959, the plaintiff entered for the first time a beauty salon in Boston, owned and operated by the defendant Adele S. Duggan, for the purpose of having her hair cut. Mrs. Duggan took the plaintiff's coat to hang it in a wall closet toward the rear of the shop. During this period the plaintiff addressed endearing terms to a Kerry blue terrier who stood in front of her, and patted him on the back. This dog, a male of thirty-seven pounds, about a year and a half old, rejoiced in the name 'Sean O'Casey,' answered to 'Casey,' and was jointly owned by Mrs. Duggan and the codefendant, Francis A. Duggan, her husband, who had purchased him in November, 1957, and to whom he was licensed. Mrs. Duggan walked the dog each morning, and on occasion kept the dog in her shop a good part of the day, furnished some of his food from her earnings, clipped his hair and nails and occasionally, with her husband, gave him a bath. During the ministrations to the plaintiff by Mrs. Duggan, there was some talk about trouble with children teasing the dog. At their conclusion and while Mrs. Duggan was procuring her coat, the plaintiff, having left the chair in which she had been seated, stopped at a point midway in the shop and 'Casey' who had been recumbent on the floor arose and walked twelve to fifteen feet toward the plaintiff. She addressed 'Casey' with the words, 'Come on--come say good-bye,' and 'bent over in a sort of semi-crouch with both knees flexed' to stroke and pat the dog's back. As Mrs. Duggan was returning with the plaintiff's cost the dog growled and leapt at the plaintiff biting her in the mouth and doing such damage to her upper lip that a separation resulted large enough in size to enable her to place her tongue through it and touch her nose with her tongue. For this injury she was treated at the Massachusetts General Hospital where she remained for a week, was bedridden at home for two additional weeks, and was confined to her home for about three months thereafter. As a result of the bite she has scars on her face and chin which are permanent and not to be eradicated by plastic surgery. The nature of the plaintiff's employment was sales promotional activity, and efficient and proper verbal expression was lost to her for approximately one year with a residue of speech impairment thereafter.

At the trial before a judge sitting without jury the plaintiff rested after introducing the auditor's report. Mrs. Duggan testified that her husband owned the dog which had been asleep on the floor when the plaintiff put her hand on him.

1. In request numbered 2 the defendants have raised the question whether the plaintiff sustained the burden of proof that the defendants were the owners and keepers of the dog which bit her. The auditor so found and his finding was evidence before the trial judge to be weighed by him. See Cook v. Farm Serv. Stores, Inc., 301 Mass. 564, 17 N.E.2d 890, and cases cited. There was evidence to warrant a finding that both defendants were owners and keepers of the dog. Canavan v. George, 292 Mass. 245, 249-250, 198 N.E. 270; Curran v. Burkhardt, 310 Mass. 466, 467, 38 N.E.2d 622. Since the plaintiff sustained the burden of proving joint ownership, it was unnecessary to demonstrate that the defendants were also joint keepers. Ibid. at pages 467-468, 38 N.E.2d 623. The trial judge rightly denied the defendants' request.

2. In request numbered 4 the defendants raised the novel question whether the plaintiff in her act of patting the dog committed a technical trespass. General Laws c. 140, § 155, provides for recompense for 'damage to * * * the body' by any dog 'unless such damage shall have been occasioned to the body * * * of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting...