Hathaway v. Tinkham
19 N.E. 18
Mass.
1888
Check Treatment
C. Allen, J.

1. When the defendant was asked what the plaintiff’s mother said about the wound, the question was objected to and excluded, the judge saying, “ I do not see how that is competent, what she said about it; she is not a party to this case.” This disclosed the ground on which the evidence was excluded, namely, that it was a declaration by a third person in regard to the wound. It is, however, now sought to establish its competency on other grounds: 1st, that it was in the presence of the plaintiff; 2dly, that it would tend to contradict or control the mother’s testimony; and 3dly, that it was a part of the same conversation testified to by her. But there is nothing to show that at the trial the admissibility of the evidence was urged on either of these grounds, and therefore they are not now open to the defendant. Wheeler v. Rice, 8 Cush. 205. Brown v. Leach, 107 Mass. 364. Baker v. Gavitt, 128 Mass. 93, 96, 97. New Haven & Northampton Co. v. Campbell, 128 Mass. 104, 107. Stone v. Sargent, 129 Mass. 503, 512. Besides, there is nothing to show what the testimony of the defendant would have been if admitted, or what the defendant offered to prove thereby, or that it would in any aspect have been material, and for this reason also an exception to its exclusion cannot be maintained. Wheeler v. Rice, 8 Cush. 205. Burke v. Savage, 13 Allen, 408. Gage Manuf. Co. v. Parr, 138 Mass. 462. Atherton v. Atkins, 139 Mass. 61. Warren v. Spencer Water Co. 143 Mass. 155, 164. Putting in evidence a portion of a conversation which is material will not entitle the adverse party to put in other portions of the same conversation which are in their nature immaterial and incompetent. Commonwealth v. Keyes, 11 Gray, 323, 325. Straw v. Greene, 14 Allen, 206. It cannot now be assumed that the offered testimony would have been important, or material.

2. The evidence which was offered to show how the injury to the defendant’s boy was caused, was clearly incompetent. If this testimony had been admitted, the plaintiff might have introduced other evidence to contradict it; and thus a new issue *88would have been presented, having nothing to do with the issue on trial.

3. There was no error in respect to the instructions to the jury. The injury to the plaintiff may have been caused by the dog’s biting him, or by jumping upon him and throwing him to the ground. No other form of injury is suggested by the evidence reported, or by the instructions which were asked. There can be no doubt that an injury done to a person in either of these modes is within the statute. Sherman v. Favour, 1 Allen, 191. Denison v. Lincoln, 131 Mass. 236. But the defendant asked the court to rule, in substance, that if such an injury in either mode was done in play, without any vicious intent on the part of the dog, the plaintiff could not recover. But this would be reading into the statute an element not found there. The statute is, “ Every owner or keeper of a-dog shall forfeit to any person injured by it double the amount of damages sustained by him, to be recovered in an action of tort.” Pub. Sts. c. 102, § 93. Similar statutes have long existed in Massachusetts. Gen. Sts. c. 88, § 59. Rev. Sts. c. 58, § 13. St. 1798, c. 54, § 3. The intent of the dog is not material. The Legislature imposes upon owners and keepers of dogs a responsibility for their acts, irrespectively of • any question of their intent. It is quite possible that injury may be done by a dog even with an affectionate intent. A dog may bite or jump upon a person in a playful mood. The statute casts the responsibility for injury thus done upon the owner or keeper of the dog. It is, however, essential to a plaintiff’s right to recover, that he should have been in the exercise of ordinary care himself. In other cases the question has been discussed, what acts may be consistent with ordinary care; Munn v. Reed, 4 Allen, 431; Plumley v. Birge, 124 Mass. 57; but that does-not arise here.

Exceptions overruled.