Baer v. Tyler

261 Mass. 138 | Mass. | 1927

Carroll, J.

This is an action of tort to recover damages because of the killing of the plaintiff’s dog by the defendant’s dog. The answer alleged that the plaintiff’s dog was not duly licensed according to law. The jury assessed damages in the sum of $654. The judge reserved the right to set aside the verdict for the plaintiff, and after entering a verdict for the defendant, he reported the case to this court.

It was agreed that the plaintiff’s dog was not licensed; that while upon a public street, under the control of the plaintiff’s agent, and held by a leash, it was attacked and killed by the defendant’s dog. The report states that the sole defence relied on was that.the plaintiff’s dog “was unlicensed and uncollared as is provided for by law, at the time when said injuries occurred.”

At common law, there is no absolute property in a dog; the property right therein is a qualified one, Blair v. Forehand, 100 Mass. 136, 140; but a dog, at common law, is property for an injury to which an action will lie. Cummings v. Perham, 1 Met. 555. Uhlein v. Cromack, 109 Mass. 273, 275. “The general rule supported by the weight of authority is that an owner of a dog, licensed or unlicensed, may maintain an action for damages against any person or corporation wilfully or negligently killing or injuring the animal.” Lacker v. Strauss, 226 Mass. 579, 581.

• Regulations are now to be found in the statutes concerning dogs; and by G. L. c. 140, § 151, any person may kill or cause to be killed a dog not “licensed and collared” as required by law “whenever or wherever found.” This statute has been held to be constitutional. Blair v. Forehand, supra. Morewood v. Wakefield, 133 Mass. 240. This statute, relied on by the defendant, is in derogation of the right of property and should be strictly construed. Commonwealth v. Beck, 187 Mass. 15. See Cummings v. Perham, supra; Heisrodt v. Hackett, 34 Mich. 283.

In Hagerstown v. Witmer, 86 Md. 293, where an ordinance providing for the summary destruction of dogs running at large was under consideration, it was said at page 304 that an ordinance of this kind “should be construed liberally in favor of the owners of dogs . . . and it ought not to be extended beyond what is absolutely required by its terms.” The Maine statute, giving the right to police officers or constables to kill unlicensed dogs, was held in Lacker v. Strauss, supra, not to be extended to a private person who negligently ran over and killed the plaintiff’s unlicensed dog. See Smith v. St. Paul City Railway, 79 Minn. 254.

Under a Michigan statute permitting any person and requiring every officer to kill unlicensed or uncollared dogs, it was held, where the plaintiff’s unlicensed dog was killed by the defendant’s dog, that the statute afforded no justification to the defendant. Heisrodt v. Hackett, supra. In the course of that opinion this language was used: “We cannot say that where the Legislature has authorized persons to kill dogs found running at large contrary to the act, the authority thus given to persons can by construction be so enlarged as to embrace animals also. The Legislature, undoubtedly, in adopting this statute, contemplated that at least some judgment would be exerised by the person before killing the dog; that he would take some steps to ascertain whether the dog was licensed and collared before killing him, and if found not properly licensed and collared, then for that reason and that alone he should be killed. No such judgment or discretion could have been exercised in this case, nor can there be any pretense that the dog was killed because he was found running at large contrary to the provisions of the act.” The reasoning of this case is applicable to the case at bar and in our opinion should be followed. The plaintiff’s unlicensed dog was not an outlaw upon the public highway. Lacker v. Strauss, supra. See Carrington v. Worcester Consolidated Street Railway, 222 Mass. 119. The plaintiff violated the law in neglecting to have her dog licensed, but this violation was not the cause of the injury, it was merely a condition. Farr v. Whitney, 260 Mass. 193, 196. See Bourne v. Whitman, 209 Mass. 155, 167. She would not be prevented from recovering unless the defendant acted within the terms of the statute.

The words of the statute, “cause to be killed,” afford the defendant no protection. These words mean that the defendant by some act or direction caused the plaintiff’s dog to be killed. The act was not caused by her within the meaning of these words giving her the right to cause the killing, merely because her dog did it, when it was done in her absence without her knowledge or direction. So far as appears she had no knowledge of the affair at the time it occurred. The language of the statute is not to be construed to mean that under the facts agreed to she “causead] [The plaintiff’s dog] to be killed.” She is liable because her dog killed the plaintiff’s dog and the statute upon which she relies is not a defence.

According to the report, judgment is to be entered for the plaintiff in the sum of $654.

So ordered.