Wilbur v. Gross

• Decision Date: 20 January 1936
• Docket Number: No. 7636.,7636.
• Citation: 182 A. 597
• Parties: WILBUR v. GROSS.
• Court: Rhode Island Supreme Court

182 A. 597

WILBUR

v. GROSS.

No. 7636.

Supreme Court of Rhode Island.

Jan. 20, 1936.

Exceptions from Superior Court, Providence and Bristol Counties; Jeremiah E. O'Connell, Presiding Justice.

Action of trespass by Charles C. Wilbur against Challoner C. Gross. Verdict for plaintiff. On defendant's exceptions.

Exceptions sustained.

Fred Israel, of Woonsocket, for plaintiff.

Wilson, Lovejoy, Budlong & Clough, of Providence, for defendant.

MOSS, Justice.

This is an action of trespass for injuries sustained by the plaintiff when bitten by a dog harbored by the defendant. There was no proof of scienter, and on that ground the defendant, at the close of the testimony, made a motion that a verdict be directed in his favor. This motion was denied by the trial court and his exception noted. The jury returned a verdict of $1,000 in favor of the plaintiff. The defendant thereafter duly moved for a new trial on the grounds that the verdict was against the law, that it was against the evidence, and that the damages were excessive. The trial justice sustained the verdict as to liability, but held all damages above $600 to be excessive. The plaintiff filed a remittitur accordingly and the defendant's motion for a new trial was therefore denied. The defendant excepted to this decision, and the case is before us on his exceptions to these rulings.

The defendant was the owner of a farm in the town of Glocester that was entirely inclosed by stone walls and other visible and tangible obstructions, except that there was an opening of the ordinary width, for a driveway that ran from the highway and past the house to a garage. On these premises the defendant had a dog, claimed to be totally blind, which was kept chained to a doghouse back of the garage. There was a passageway between the garage and the barn, which led to an orchard. The plaintiff called at the farm at the defendant's invitation to get some apples. At the back door of the house he inquired for the defendant and was directed to go through the barn to the orchard, where the defendant then was. Instead of going as directed, he used the passageway between the barn and the garage and was there bitten by the dog.

The plaintiff contended at the trial, and in his brief and argument before us, that he did not have to prove scienter, as required at common law, because of the provisions of Gen.Laws 1923, c. 136, § 3. Omitting a small irrelevant part, this section is as follows: "If any dog shall kill, wound, or worry, or assist in killing, wounding or worrying, any sheep, lamb, cattle, horse, hog, swine, fowl, or other domestic animal, belonging to or in the possession of any person, or shall assault or bite, or otherwise injure, any person while travelling the highway or out of the enclosure of the owner or keeper of such dog, the owner or keeper of such dog shall be liable to the person aggrieved as aforesaid, * * * and it shall not be necessary, in order to sustain any such action, to prove that the owner or keeper of such dog knew that such dog was accustomed to do such damage."

Specifically, the plaintiff contended and the trial justice ruled that since the defendant's premises, within which the dog injured the plaintiff, were not completely surrounded by tangible obstructions, but had the above-described opening into them, the dog, when it bit the plaintiff, was "out of the enclosure" of the defendant, within the meaning of the above section, and that therefore proof of scienter was not necessary. Clearly the decision of the case depends wholly on the intent and meaning of the pertinent part of this section and particularly on the proper construction of the word "enclosure" as used therein.

This section has been involved in many cases which have been decided by this court, and in several of them there have been statements of the meaning of the word "enclosure," but according to our analysis of those cases, these statements have been rather incidental and not vital to the determination of the cases in which they have been made, except in Whittet v. Bertsch, 39 R.I. 31, 97 A. 18, L.R.A.1916E, 710, which will be fully discussed infra. In none of the opinions in those cases has there been any careful consideration of the precise meaning of the word "enclosure," as used in this section, in the light of the context and the intent and purpose of the statute, probably because no such consideration has seemed necessary for the decision of any case that has previously come before this court. We do not find that the meaning of this word has ever been clearly determined with reference to the decisive issue in the instant case. We therefore feel it to be our duty to consider and discuss it fully at this time.

In construing a statute it is well settled that "when the language is not precise and clear, such construction will be adopted as shall appear most reasonable and best suited to accomplish the objects of the statute, and that a construction which leads to an absurdity will be avoided if possible." State v. Drowne, 20 R.I. 302, 306, 38 A. 978, 979. In re Condemnation of Certain Land for New State House, 19 R.I. 326, 331, 33 A. 448, 450, the court says: "The intention of the makers of a statute is sometimes to be collected from the cause or necessity of making a statute, and at other times from the circumstances." And in Dawley v. Probate Court, 16 R.I. 694, 696, 19 A. 248, 249, the court, in speaking of the interpretation of statutes, says: "The real intention, it is said, should always prevail over the literal sense of terms; and the real intention is to be ascertained from an examination of the whole and every part of a statute, taken and compared together." Racine v. Tenth District Court, 39 R.I. 475, 98 A. 97; Morgan v. Allen, 51 R.I. 228, 153 A. 791.

The part of section 3 that concerns damage by dogs to domestic animals goes back at least to public laws of Rhode Island, revision of 1798, where substantially the same provision is found on page 538 under the heading: "An Act to prevent Sheep and Cattle from being worried and torn by Dogs." The provision appears in the revisions of 1822; 1844, p. 362, § 3; and 1857, c. 82. Pub.Laws 1860, c. 326, amends Public Laws 1857, c. 82, by adding certain other provisions which appear in the chapter on dogs in the revisions from 1872 down to the present time. One of these additions of 1860 was the predecessor of section 6, c. 136, of our General Laws of 1923, and deserves consideration in determining the question now at issue.

The pertinent part of that section and of its predecessors reads as follows: "Any person may kill any dog that may suddenly assault him or any person of his family or in his company, while the person so assaulted is out of the enclosure of the owner or keeper of such dog." From this language it seems clear to us that it was the intent of this section that if any person is to have the right to kill a dog which may assault him, he must keep out of the inclosure of the owner or keeper of the dog and that if such person enters inside the inclosure of another person, he loses the right to kill a dog kept there, if he is suddenly assaulted, while inside the inclosure, by such dog. The condition, as stated in this section, is the position of the person assaulted and not of the dog.

In our view, then, the important thing under this section is that there be something to give a man reasonable notice that he is entering upon occupied premises, where there may be a dog. There would be such notice if such premises are set apart from adjoining property by boundaries sufficiently apparent to indicate the approximate limits of occupation. If the word "enclosure" can be reasonably construed to mean occupied premises thus set apart, it is our conclusion that it should be given that meaning in this section. We know of nothing in our statutes which makes this meaning unreasonable, and cases will be cited and discussed later in this opinion which to our minds show that this is a proper meaning.

Section 3, in substantially the same form as at present, was enacted by Laws 1889, chap. 749. Until then it was confined to damage done by dogs to domestic animals, and the language with regard to the recovery of damages for personal injuries inflicted by a dog was then added. Most of this language, including "out of the enclosure of the owner or keeper of such dog," is the same as language in section 6, above quoted and discussed. Section 3, then, should be construed as harmoniously as possible with section 6. The former says: "If any dog * * * shall assault or bite, or otherwise injure, any person while travelling the highway or out of the enclosure of the owner or keeper of such dog," etc. Here the word "travelling" would naturally refer to a person rather than to a dog, and for that reason, and because in section 6 "out of the enclosure," etc., clearly applies to the person, and because of the order of the words in section 3, we are convinced that in this section the clause "while travelling the highway or out of the enclosure of the owner or keeper of such dog" modifies the word "person" and not the word "dog."

The case of Swift v. Applebone, 23 Mich. 252, was brought on a statute almost wholly the same as ours, and all the part of our statute which is involved in the instant case may have been taken verbatim from this earlier Michigan statute. In his charge to the jury in that case the trial justice showed clearly that he construed the clause in question, there and here, as modifying "person" and not "dog," and this was not criticized by the Supreme Court. The meaning of the word "enclosure," so far as we have been able to ascertain, was in no way involved in that case or in any other Michigan case, or in any other dog-biting case outside of Rhode Island.

Since our sections 3 and 6 are so similar in all that helps in the construction of the word "enclosure," we are convinced that the meaning of section 3 is that any...