Maillet v. Mininno

• Citation: 266 Mass. 86
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Decision Date: 30 January 1929
• Parties: LILLIAN MAILLET v. AGOSTINO MININNO & another.

266 Mass. 86

LILLIAN MAILLET v. AGOSTINO MININNO & another.

Supreme Judicial Court of Massachusetts, Suffolk.

January 30, 1929

November 9, 1928.

Present: RUGG, C.

J., CROSBY CARROLL, WAIT, & SANDERSON, JJ.

Dog. Practice Civil, Judge's charge.

Evidence Admission, Presumptions and burden of proof. Waiver.

It was stated that, if, in a declaration in an action of tort against two persons for injuries resulting from the bite of a dog, it is alleged that "the defendants were the owners or keepers" of the dog, a demurrer to the declaration should be sustained.

No demurrer was filed to a declaration of the character above described, and at the trial, there was evidence warranting a finding that both defendants were both owners and keepers of the dog. A motion for a verdict for the defendants was denied, and there was a verdict against both defendants. Held, that the motion properly was denied and the verdict was warranted.

At the trial above described, the judge instructed the jury that 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; and further pointed out that the mere presence of the dog on the premises where defendants lived, or acquiescence in its presence, was not enough to show ownership of keeping, but that harboring of the dog with an assumption of custody, management and control was evidence of keeping even if not of ownership. Held, that the instructions were proper.

From the reading of the entire charge to the jury at the trial above described, it was held, that the judge did not intend the jury to think that he was telling them what conclusion they must reach.

There was evidence at the trial above described that the dog had been about the premises of the defendants to their knowledge, and the plaintiff's father testified that, in consequence of a former occurrence, he had gone to the home of the defendants and had spoken to them about the dog which bit the plaintiff and which was then present in the house; that both defendants were present; that the plaintiff's father asked that the dog be locked up as it was a nuisance and "had been jumping on the children"; that both defendants, speaking through one of them, told him to mind his own business, they would take care of their own dog. The judge denied a motion that a verdict be ordered for the defendants.

There was a verdict for the plaintiff. Held, that the motion properly was denied and that the evidence warranted a verdict for the plaintiff.

TORT for injuries resulting from a bite of a dog. Writ dated January 26, 1923.

In the Superior Court, the action was tried before Gray, J. Material evidence and exceptions saved by the defendants are stated in the opinion. That portion of the judge's charge which related to the effect of the conversation between the plaintiff's father and the defendants was in substance as follows:

"Now, the only evidence that has been presented that would warrant you in finding the defendants were the keepers of this dog, is the evidence given by the plaintiff's father, the conversation that he claims he had with them, which you recall he stated to you. The other evidence in the case, as matter of law, is insufficient to show the defendants to be the owners and keepers, or keepers, and if that was all you had, and if you did not have this conversation, evidence of this conversation, it would be my duty to direct a verdict for the defendants on the ground that there was a failure as to the proof of ownership, or that the defendants were the keepers of the dog. But you do have this conversation, and having evidence of the conversation your problem, then, is first to decide whether this conversation did actually take place, as the plaintiff's father said it did. If you find it did, you will inquire whether under all the circumstances the presence of the dog there (if you find it was there) and all the other evidence in the case, I say you will then inquire whether in the light of all the other facts which have been presented, you are warranted in finding the defendants were keepers of the dog. . . . You will decide which of the two are the more convincing. The plaintiff must satisfy you that the conversation took place, or the plaintiff has no case. If, on all the evidence you shall say that no conversation took place, you will find for the defendant; if, on the other hand, you find the father's statement, in detailing that conversation now, after five years, satisfies you it did in substance take place, and if you say the denial which has been made by these defendants is not so firm and conclusive that you believe it, if you believe the father of the plaintiff, then you will inquire if in the light of all the circumstances, it amounted in your minds to an admission on the part of these two defendants that they were the joint owners or keepers of the dog, when they used this language, if you find they did use it, as the...