52 A.2d 700 | Conn. | 1947
This is a statutory action for damages for injuries suffered by the plaintiff by reason of an attack by the defendant's dog. The main defense is that the plaintiff was a trespasser on the defendant's land at the time. The defendant has appealed from judgment for the plaintiff, assigning error in the finding and judgment. The facts the defendant seeks to have added to the finding are based upon his own testimony. His credibility was a matter for the trial court to decide.
The facts may be stated as follows: The defendant was the tenant of a farm in the town of Tolland. On July 9, 1945, he had two watchdogs for the protection of his property which were tied near the west side of his house but in such a manner that a person could go to the front door and could pass along the west side of the house to the rear without coming within reach of the dogs, if he had seen them or had warning of their presence. About 12 noon on *507 this date the plaintiff, who had heard that the defendant had fertilizer for sale, entered the defendant's yard for the purpose of purchasing some. He knocked at the front door but received no reply and, hearing voices in the house, went around the westerly side toward the kitchen door. He was attacked, without warning, by one of the dogs and severely bitten in the arm. The dog was fastened by a six-foot chain tied to a truck or tree. The plaintiff did not hear or see either dog until he was attacked.
The statute upon which plaintiff brought the action, General Statutes, Cum. Sup. 1935, 1380c, reads as follows: "If any dog shall do any damage to either the body or property of any person, the owner or keeper, or, if the owner or keeper be a minor, the parent or guardian of such minor, shall be liable for such damage, except when such damage shall have been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog." The defendant claims that upon the facts found the plaintiff was a trespasser and points to the fact that the trial court stated in its conclusions "that at the most the plaintiff was a technical trespasser." Whether or not this statement amounts to a holding that the plaintiff was nominally a trespasser is not vital if the facts support the trial court's judgment that he was not a trespasser within the meaning of the statute. Conn. App. Proc. 18; Davis v. Margolis,
We have reviewed 1380c and its antecedent *508
statutes from time to time. Kelley v. Killourey,
We have never had the precise question whether mere entry upon land is such a trespass as is contemplated by the statute. At common law every unwarrantable entry by one upon the land of another was a trespass. See 52 Am.Jur. 844, 12. The word "unwarrantable" has some significance. In the early case of Champion v. Hartshorne,
This, indeed, is not the situation of the plaintiff in this action. He entered the defendant's land to serve his own purpose and perhaps, incidentally, that of the defendant. But, under the law of this state at least, entry on another's premises is not conclusive of trespass but may be justified, and that justification is not limited to proof of proprietary right of entry or express consent of one in possession.
Under an earlier "dog-bite" statute (General Statutes, Compilation of 1854, p. 149) which provided that "whenever any dog shall do any damage, either to the body or property of any person, the owner, or keeper . . . shall pay such damage, to be recovered in an action of trespass," it was held in Woolf v. Chalker,
The plaintiff entered the defendant's yard and went to the front door on an honest errand. There was no response to his knock but he heard voices within the house and so proceeded toward the rear *511 of it. On his way he was attacked by the dog without warning. Concededly the dog was a police dog kept for the purpose of protecting the defendant's property against trespassers, and the character of the plaintiff's wound indicated the potential source of danger therefrom. While the plaintiff might have passed to the rear of the house without coming within range of the dog, it is a fair inference from the fact that he did not see it that the dog was concealed from his view. We hold no more than that the conclusion of the trial court to the effect that the act of the plaintiff was not such a trespass as was within the intent of the statute was reasonable.
There is no error.
In this opinion the other judges concurred.