McLoughlin v. Kemp

• Decision Date: 21 June 1890
• Citation: 152 Mass. 7,25 N.E. 18
• Parties: MCLOUGHLIN v. KEMP et ux., (two cases.)
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

152 Mass. 7

25 N.E. 18

MCLOUGHLIN v. KEMP et ux., (two cases.)

Supreme Judicial Court of Massachusetts, Norfolk.

June 21, 1890

A wife is not the keeper of dogs, and liable for a bite inflicted by them, if they are her husband's, and he keeps them against her consent, on her premises, which she uses for her separate business, and she does nothing to maintain them.

Exceptions from superior court, Norfolk county JAMES M. BARKER, Judge.

Two actions of tort, tried together, to recover damages for injuries sustained by the plaintiffs from the bite of a dog alleged to be kept by the defendants, Arthur Kemp and Adelaide M. Kemp. John E. McLoughlin, plaintiff in the first action, was a minor, aged eight years, and brought the action by his next friend to recover for the injuries sustained by him from the bite of the dog. Thomas McLoughlin, plaintiff in the second action, was the father of John E., and brought the action to recover for the expenses and loss of services occasioned by the injury to his son from the bite of the dog. The defendant Arthur Kemp was defaulted, and the defendant Adelaide M. Kemp, his wife, alone defended. It was admitted that the dogs were kept on Mrs. Kemp's premises, with her knowledge, for some months prior to the plaintiff's injuries; that various parties had been bitten by the dogs and that complaints thereof had been made to Arthur Kemp, and to one of the sons of Mrs. Kemp, but Mrs. Kemp denied all knowledge of said complaints. No question was made as to the due care on the part of John E. McLoughlin, and the issue tried and argued was whether or not the defendant Mrs. Kemp was a keeper of the dogs within the meaning of the statutes. At the trial the evidence tended to show that the plaintiff John E. McLoughlin was bitten on the 5th day of November 1887, by a dog owned by the defendant Arthur Kemp; that the dog which bit the plaintiff, together with seven or eight other dogs, was kept on certain premises owned by Mrs. Kemp situated on Cypress street, Brookline, and were frequently seen upon and around the premises; that the defendant Arthur Kemp assisted his wife in the care of her premises by sweeping the walks, caring for the flower beds, and engaging and hiring a contractor to connect the premises with a sewer running through Cypress street; that Mrs. Kemp bought the groceries, and provided for the table of her family, she being engaged in the business of keeping boarders; and that her husband, Arthur Kemp, was supported by the income of a trust fund; that her husband had charge of the feeding and care of the...