292 Mass. 299 | Mass. | 1935
This is an action of tort brought by the administrator of the estate of Pompeio Leone. The declaration is in two counts, the first to recover for the death of the plaintiff’s intestate as a result of his having been bitten by the defendant’s dog, and the second to recover double damages for the conscious suffering of the plaintiff’s intes
There was no error.
The evidence warranted a finding that the intestate was bitten by a dog owned by the defendant, that the dog had rabies, and that as a result of being bitten by the dog the intestate contracted rabies and, more than a month after he was bitten, died as a result of rabies so contracted. There was evidence that the dog before it bit the plaintiff had not exhibited any of the usual symptoms of a rabid dog and there was “evidence that the defendant had no knowledge or reason to suspect that his dog was rabid, and no evidence to the contrary.” There was “contradictory evidence as to the vicious character of the defendant’s dog.”
The plaintiff, on the evidence, is entitled to recover, if at all, only under G. L. (Ter. Ed.) c. 140, § 155, which is as follows: “The owner or keeper of a dog shall be liable in tort to a person injured by it in double the amount of damages sustained by him.”
Under this statute the owner or keeper of a dog is liable for double damages for injury resulting from an act of the dog without proof, as required by the common law, that its owner or keeper was negligent or otherwise at fault, or knew, or had reason to know, that the dog had any extraordinary, dangerous propensity, and even without proof that the dog in fact had any such propensity. Canavan v. George, ante, 245, and cases cited. Though this principle is usually stated in terms of proof, liability of an owner or keeper of a dog under the statute is not negatived by proof that such owner or keeper was not at fault, that he neither knew, nor had reason to know, that the dog had any extraordinary, dangerous propensity, or that the dog had no
The defendant contends, however, that the principles stated are inapplicable to an injury caused by a rabid dog. More specifically he contends that G. L. (Ter. Ed.) c. 140, § 155, does not apply to such a dog, or at least that it does not impose upon the owner or keeper of such a dog liability for an injury caused by reason of the dog’s disease if such owner or keeper neither knew, nor had reason to know, that the dog was rabid. The instructions requested by the defendant and refused by the trial judge embodied these contentions. They were refused rightly since the contentions cannot be sustained.
At common law the principles governing liability for injury caused by a dog afflicted with canine disease were the
It is urged in substance by the defendant that G. L. (Ter. Ed.) c. 140, § 155, is so unreasonable as applied to a rabid dog that an exception therefrom of a rabid dog, or at least of such a dog whose owner or keeper neither knew, nor had reason to know, that it was rabid, ought to be implied. From the standpoint of a person injured the serious nature of the harm which .may be caused by a rabid dog furnishes even greater reason for giving protection against such a dog than against other dogs. Compare Andrews v. Jordan Marsh Co. 283 Mass. 158, 162. On the other hand the hardship imposed on the owner or keeper of a rabid dog by making him liable even to the extent’ of double damages for injury caused by such dog to a person without fault differs only in degree from that imposed on the owners and keepers of other dogs. Doubtless one of the purposes of
The underlying principle of the statute, however, is clearly that the risk of harm resulting from the act of a dog to a person who is without fault, so far as this harm can be measured in damages, is placed upon the owner or keeper of the dog and not upon the faultless injured person. There is no such difference between the risk of harm from a rabid dog and the risk of harm from any other dog that the exclusion of the rabid dog from any of the provisions of the statute broad enough to apply to such a dog is to be implied. As was said in a strong dissenting opinion in Elliott v. Herz, 29 Mich. 202, 205-206, in regard to a similar statute, “it keeps in view all, and not merely part of the considerations of danger, and holds the person who chooses to take the hazard of owning or keeping a dog, to the stringent responsibility marked out. When we closely examine the matter, we are forced to think that it is inconsistent with the spirit of this law to divide the risk incident to a person’s election to hold such an animal, and subject the party thus voluntarily keeping what the law treats as something dangerous for the least harmful of the possible consequences, and cast upon innocent third persons, who have had no share in the origination or perpetuation of the cause of danger, the most dire and serious of the loss and mischief which result. . . . The abstract propriety of the regulation is something for
For the reasons stated in connection with the refusal of instructions requested by the defendant, the motion for a directed verdict was denied rightly. Whether the denial of this motion could be sustained on any other ground need not be considered.
Exceptions overruled.