Mitchell v. Chase

• Decision Date: 21 January 1895
• Parties: MITCHELL v. CHASE.
• Court: Maine Supreme Court

32 A. 867

87 Me. 172

MITCHELL

v. CHASE.

Supreme Judicial Court of Maine.

Jan. 21, 1895.

(Official.)

Exceptions from supreme judicial court, Piscataquis county.

This was an action of trespass by Marion E. Mitchell, pro ami, against Annette E. Chase to recover damages caused to the plaintiff by the bite of a dog, of which the defendant was alleged to be the owner and keeper in the first count, and keeper in the second count, of the declaration.

After the jury had been impaneled, and before the beginning of the trial, the plaintiff obtained leave, against the objection of the defendant, to amend the writ by inserting a third count similar to the second and declaring upon the statute. Rev. St c. 30, § 1. The defendant took exceptions to the granting of the amendment. Overruled.

Amended Declaration: "Also, for that the said defendant at said Milo, on the sixteenth day of July, A. D. 1891, was the keeper of a large dog, and, on the said sixteenth day of July aforesaid, the defendant's said dog assaulted the plaintiff, bit her and scratched her, tore and lacerated the plaintiff's ear so that it has been badly swollen and inflamed ever since, impairing the plaintiff's hearing, and disfiguring the plaintiff's ear forever; and the assault of the said defendant's dog aforesaid gave the plaintiff a severe nervous shock, so that she is unable to control her nerves, but jumps and cries out in her sleep, and is unable to control herself when awake, but is afraid of being bitten by dogs, and will run and scream when a dog goes towards her, even in a playful manner; and said plaintiff has been by the assault of said defendant's dog disfigured for life, has had her hearing impaired, if not destroyed, and has been subjected, and is now subjected, to great pain and suffering and great nervous distress and suffering,— whereby, and by force of the statutes in such case made and provided, an action hath accrued to the plaintiff to have and recover of said defendant double the amount of damages done as aforesaid, to the damage of said plaintiff (as she says) the sum of two thousand dollars. * * *"

After the verdict, which was for the plaintiff, the defendant also took exceptions to various portions of the charge to the jury, among which are the following:

"Negligence is not an element in this case, because, however careful an owner of a dog might be, if the dog did injury, the owner or keeper would be liable, and, however gross negligence might be attributable to the owner or keeper of a dog, it would not add to the liability of such owner. * * *

"It is only necessary in this action for the plaintiff, taking upon herself the burden of proof, to satisfy you by a preponderance of testimony of the truth of two propositions: First, either that the defendant was the owner or keeper of the dog that did the injury; and, second, that the injury was done. * * *

"Now, I have said to you that either the owner or the keeper would be liable. In this action there are three counts, as it is called, in the declaration. In one of those counts the plaintiff declares against the defendant as the owner and keeper. In the other two counts she declares against the defendant as the keeper. Now, this statute is a penal statute to a certain extent, and must be construed strictly. Inasmuch as the plaintiff has alleged in one count that the defendant is the owner and keeper, to entitle her to a verdict under that count she must prove to your satisfaction that the defendant was both the owner and keeper, and in the other two counts, inasmuch as she has alleged against the defendant that the defendant was the keeper, she must satisfy you by a preponderance of the testimony that the defendant was the keeper of the dog. That is, the...