Maillet v. Mininno

• Decision Date: 31 January 1929
• Parties: MAILLET v. MININNO et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

266 Mass. 86

165 N.E. 15

MAILLET

v.MININNO et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 31, 1929.

Exceptions from Superior Court, Suffolk County; Wilford D. Gray, Judge.

Action by Lillian Maillet, by her next friend, against Agostino Mininno and another. Judgment for plaintiff, and defendants bring exceptions. Exceptions overruled.Rose A. Spatz, of Boston, for plaintiff.

W. W. Clarke, of Boston, for defendants.

WAIT, J.

The plaintiff was bitten by a dog. G. L. c. 140, § 155, provides: ‘The owner or keeper of a dog shall be liable in tort to a person injured by it in double the amount of damages sustained by him.’ She brought action, thereunder, against Agostion Mininno and his wife Rachele; and declared against them in one count alleging that ‘the defendants were the owners or keepers' of the dog.

Had the defendants demurred, such a declaration must have been declared to be bad. It was decided in Galvin v. Parker, 154 Mass. 346, 28 N. E. 244, that the owner and the keeper of a dog are not liable joinlty and severally as tort-feasors under that statute; that an election must be made to sue either the owner or the keeper; and that, if a judgment were obtained against one, no suit against the other could be maintained even if the judgment remained unsatisfied.

The defendats, however, did not demur. They filed a joint answer of general denial; and went to trial where the plaintiff sought to prove that the defendants jointly were both owners and keepers of the dog. When the evidence was all in, the defendants moved for a directed verdict in their favor, contending that recovery could not be had under the declaration charging them as ‘owners or keepers' of the dog. The motion was nied; and after verdict for the plaintiff against both jointly, the defendants allege error in the denial. It is obvious that the decision in Galvin v. Parker, supra, does not deal with a case where the owner is also the keeper of the dog. If owner and keeper are one, it is immaterial whether the declaration charges ownership or keeping, or both. Having gone to trial without demurrer, the defendants cannot complain at being held liable if evidence, admissible under the declaration, discloses facts which establish liability. Murphy v. Russell, 202 Mass. 480, 89 N. E. 107. Here if Agostino and Rachele jointly were both owners and keepers of the dog, a liabilitywould be established. There was an issue of fact for the jury. The judge, therefore, could not direct a verdict. There was no error in denying the motion.

Nor was there error in the parts of the charge to which exceptions were taken. The judge carefully instructed the jury thaat both defendants must be found to be jointly the owners or jointly the keepers of the dog; that it would not be enough to find one an owner and one a keeper. We see no possibility of misunderstanding on this point, and we must assume that the jury...