Lacker v. Strauss

• Decision Date: 23 May 1917
• Citation: 226 Mass. 579,116 N.E. 236
• Parties: LACKER v. STRAUSS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

226 Mass. 579

116 N.E. 236

LACKER

v.STRAUSS.

Supreme Judicial Court of Massachusetts, Middlesex.

May 23, 1917.

Exceptions from Superior Court, Middlesex County; Wm. B. Stevens, Judge.

Action by Frederick J. Lacker against Alexander Strauss to recover damages for an unlicensed dog killed on a public highway by defendant's automobile.Defendant admitted negligence on the part of his chauffeur, but contended that he was not liable unless chauffeur was guilty of wanton and reckless misconduct.Verdict for plaintiff, and defendant brings exceptions.Exceptions overruled.

Fuller & Toye, of Boston, for plaintiff.

F. E. Dunbar and A. C. Spalding, both of Lowell, for defendant.

PIERCE, J.

[1][2] By the common law a dog is property for an injury to which an action will lie.Wright v. Ramscot, 1 Wms. Saund. 84. 2 Bl. Com. 393.Chapman v. Decrow, 93 Me. 378, 45 Atl. 295,74 Am. St. Rep. 357;Uhlein v. Cromack, 109 Mass. 273;Cummings v. Perham, 1 Metc. 555;State v. McDuffie, 34 N. H. 523, 69 Am. Dec. 516;St. Louis S. W. Ry. Co. v. Stanfield, 63 Ark. 643, 40 S. W. 126,37 L. R. A. 659;4 Bl. Com. 235.

‘By the common law, as well as by the law of most, if not all, the states, dogs are so far recognized as property that an action will lie for their conversion or injury.’Sentell v. New Orleans, etc., R. R., 166 U. S. 698, 17 Sup. Ct. 693, 41 L. Ed. 1169.

The defendant concedes his negligence but claims that liability to respond in an action of tort for damages for injury to an unlicensed dog, arises only when the acts complained of are intentional, wanton, or reckless.This position is supported by the case of Jemison v. Southwestern R. R., 75 GA. 444, 58 Am. Rep. 476, now somewhat weakened by Columbus R. R. v. Woolfolk, 128 Ga. 631, 58 S. E. 152,10 L. R. A. (N. S.) 1136, 119 Am. St. Rep. 404, and by Dickerman v. Consolidated Ry., 79 Conn. 427, 65 Atl. 289,8 Ann. Cas. 417.The basis of this last decision is that no person can have such property in an unregistered dog as will enable him to maintain an action for the negligent killing of the animal.The court refuses to decide whether or not one might under any circumstances have a right of action for a willful killing of an unregistered dog, or for the negligent killing of a registered dog.The Dickerman Case and the case at bar in their facts are alike only to the extent that an unlicensed dog may be killed by an offcer of the law under the Maine statute, by virtue of a warrant-under the Connecticut statute, without a warrant.The general rule supported by the weight of authority is that an owner of a dog, licensed or unlicensed, may maintain an action for damages against any person or corporation willfully or negligently killing or injuring the animal.Louisville & Nashville R. R. v. Fitzpatrick, 129 Ala. 322, 29South. 859,87 Am. St. Rep. 64;St....