Plummer v. Ricker

• Decision Date: 03 October 1898
• Citation: 41 A. 1045,71 Vt. 114
• Parties: PLUMMER v. RICKER.
• Court: Vermont Supreme Court

41 A. 1045

71 Vt. 114

PLUMMER

v. RICKER.

Supreme Court of Vermont. Caledonia.

Oct. 3, 1898.

Exceptions from Caledonia county court; Thompson, Judge.

Action by Henry Plummer, by next friend, against Benjamin M. Ricker. There was a judgment for plaintiff, and defendant excepts. Reversed.

The plaintiff, a young boy, claimed to have been attacked and bitten by the defendant's dog as the plaintiff, with other children, was passing the defendant's house. The defendant testified that he was present on the occasion in question, and that the boy was not bitten, but that he fell down in the road, and hurt himself upon a stone; that the dog was present but did not stir from his place. The witness Perkins testified to being at work as a plumber on the defendant's premises, on some day before the accident, when the dog was tied in the barn floor. The defendant was not at home. The witness was then asked why the dog was kepttied, and began to answer, "He was tied, as I suppose—," when he was interrupted by the court and instructed to tell only what he knew. The witness then completed his answer as follows: "to prevent our being bitten by him."

Smith & Sloane, for plaintiff.

Bates, May & Simonds, for defendant.

START, J. The action is case, for the recovery of damages resulting from the bite of an alleged vicious dog. The plaintiff's evidence tended to show that the dog was given to the defendant's minor son; that he was kept at the defendant's house nearly all summer and fall before he bit the plaintiff; that he had been seen to follow the defendant's team; that both the son and the dog made the defendant's house their home; that the dog had bitten one boy before at the defendant's house, of which the defendant was informed; and that the defendant stated that he would not have the dog killed. The court instructed the jury that if the defendant was the head of the family, and suffered or permitted the dog in question to be kept on the premises, in the way such domestic animals are usually kept, as a member of the family, so to speak, in so far as a house dog can be termed a member of one's family, then, within the meaning of the law, he was the keeper of the dog, and the same duty was imposed upon him as such keeper to restrain him, if he was aware of his propensity to bite persons, that would have been imposed upon him had he been the actual owner. The court also told the jury that if the son was stopping at the defendant's, and the defendant permitted him to have the dog there, and permitted the dog to make that place his home, and to be, as much as a dog can, a member of his (the defendant's) family, then the dog would not be there casually, in the sense indicated, and the duty explained would arise and rest upon the defendant to see that, while he was thus there, he was properly restrained, if he was accustomed to do that which in the law amounts to being accustomed to bite persons. The defendant excepted to what the court said would in law constitute a keeper of the dog and to what the court said about keeping the dog at the defendant's place by the son. In these instructions there was no error. If the defendant housed, harbored, and fed the dog in the way such animals are kept by the owners, and permitted him to be a member of his family, in so far as such domestic animals can be members of families, he may well be regarded as the keeper of the dog. In Barrett v. Railroad Co., 3 Allen, 101, under a statute rendering the keeper, as well as the owner, of the dog liable to any person injured by him, it was held that the fact that the dog was kept on the defendant's premises by a person in its employment, who had charge and superintendence of its...