74 Me. 487 | Me. | 1883
Under the statute, R. S., c. 30, § 1, double the amount of the damage which a dog has done to person or property may be recovered of his owner or keeper in an action of trespass. The liability is upon either the owner or the keeper. But in the present case the plaintiff having declared against the defendant as owner and keeper, this was regarded as a descriptive averment, and the ruling- of the court required the plaintiff to sustain by evidence the full allegation, that the defendant was both owner and keeper, in accordance with the rather strict rule declared in Buddington v. Shearer, 20 Pick. 477, and cited in Smith v. Montgomery, 52 Maine, 178.
The damage was done by two dogs. The light of recovery was limited at the trial to the damage done by the one the defendant owned, and the question was whether he was the keeper of that dog.
A man is presumed to be the keeper of his own dog, except in so far as the contrary appears. This dog was kept at the Mansion House, a hotel owned and conducted by a firm, of which the defendant was a member. The non-joinder of the other members of the firm as defendants in the action afforded no ground of defence. The fact -that others with the defendant may have had some part in taking charge of his dog, did not prevent his being the keeper within the meaning of the statute. The ruling that "if the dog under these circumstances was kept there
The plea was the general issue.
The amount of the double damages assessed by the jury was twenty-four dollars and seventy-five cents. The times when the dogs attacked the sheep, and the number of sheep killed were in dispute. There was also some evidence of injury to sheep that were not killed. The damages are not so clearly excessive as to compel a new trial. Whether the jury, in the special finding included in their. verdict, took precisely the method the court would have adopted to reach the amount of damage, is not a material inquiry.
Motion and exceptions overruled.
