Collingill v. City of Haverhill

128 Mass. 218 | Mass. | 1880

Lord, J.

It has been so often held in this Commonwealth that the officers of a town in the exercise of their official duty are not the agents of the town, that we must seek for the liability of this defendant on some other ground than by the conduct of its officers in the discharge of their official duty. The plaintiff, aware of this, seeks to charge the city upon the ground that the dog by which he was bitten was kept upon its premises, by its servant, in the course of his employment, and so to bring the case within the decision of Barrett v. Malden & Melrose Railroad, 3 Allen, 101.

The question in that case was whether there was evidence to submit to the jury upon the question whether the defendant, by its servants, was the keeper of the dog. In this case, the facts are all found, aud such facts are not found as necessarily to create a liability on the part of the city. If the question of its liability depends upon an inference to be drawn from the facts, the court below has drawn that inference against the plaintiff; and we think rightly. There is nothing in the facts tending to show that the superintendent of the city farm was not both the owner and keeper of the dog; and although the facts find that “ during a portion of the time ” the dog “ was allowed the run of the farm,” there is no fact which shows or has any tendency to show that that “ run of the farm ” was for the benefit or in the interest of the defendant. Judgment affirmed.