Maillet v. Mininno, 266 Mass. 86

266 Mass. 86 | Mass. | 1929

Wait, J.

The plaintiff was bitten by a dog. G. L. c. 140, § 155, provides: “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.” She brought action, thereunder, against Agostino Mininno and his wife Rachele; and declared against them in'one count alleging that “the defendants were the owners or keepers” of the dog.

Had the defendants demurred, such a declaration must have been declared to be bad. It was decided in Galvin v. Parker, 154 Mass. 346, that the owner and the keeper of a dog are not liable jointly and severally as tortfeasors under that statute; that an election must be made to sue either the owner or the keeper; and that, if a judgment were obtained against one, no suit against the other could be maintained even if the judgment remained unsatisfied.

The defendants, however, did not demur. They filed a joint answer of general denial; and went to trial where the plaintiff sought to prove that the defendants jointly were both owners and keepers of the dog. When the evidence was all in, the defendants moved for a directed verdict in their favor, contending that recovery could not be had under the declaration charging them as “owners or keepers” of the dog. The motion was denied; and after verdict for the plaintiff against both jointly, the defendants allege error in the denial. It is obvious that the decision in Galvin v. Parker, supra, does not deal with a case where the owner is also the keeper of the dog. If owner and keeper are one, it is immaterial whether the declaration charges ownership or keeping, or both. Having gone to trial without demurrer, the defendants cannot complain at being held liable if evidence, admissible under the declaration, discloses facts which establish liability. Murphy v. Russell, 202 Mass. 480. Here if Agostino and Rachele jointly were both owners and keepers of the dog, a liability would be established. There was an issue of fact for the jury. The judge, therefore, could not direct a verdict. There was no error in denying the motion.

Nor was there error in the parts of the charge to which exceptions were taken. The judge carefully instructed the jury that both defendants must be found to be jointly the owners or jointly the keepers of the dog; that it would not be enough to find one an owner and one a keeper. We see no possibility of misunderstanding on this point, and we must assume that the jury followed the instructions. He was right in pointing out that the mere presence of the dog on the premises where defendants lived, or acquiescence in its presence, was not enough to show ownership or keeping, but that harboring with an assumption of custody, management and control of the dog was evidence of keeping even if not of ownership. See Boylan v. Everett, 172 Mass. 453.

We think the jury could not have understood the charge to mean that, if they found that the conversation later to be dealt with took place, they must find the defendants liable. The judge had already instructed them that it was for them to pass upon the meaning of the conversation, and the inferences to be drawn from it on the issues of keeping and of ownership. It is manifest that he did not intend them to think that he was telling them what conclusion they must reach.

The only evidence which would warrant finding the defendants jointly either keepers or owners of the dog, as the judge ruled correctly, was a conversation which the plaintiff’s father testified had taken place, but which the defendants both denied under their oaths as witnesses. This evidence was admitted properly. The father testified that, in consequence of a former occurrence, he had gone to the home of the defendants and spoken to them about the dog which bit the plaintiff and which was then present in the house. The jury could find that both defendants were present and that, speaking through the wife, when the father asked that the dog be locked up as it was a nuisance and had been jumping on the children, they told him to mind his own business, they would take care of their own dog.

Manifestly this evidence, whatever its weight, was competent on the issue whether the defendants owned the dog, and were keeping it. There was other evidence from which the jury could find that the dog had been about the premises of the defendants to their knowledge.

We find no error in the rulings or instructions excepted to. With the findings of fact we have no authority to interfere.

Exceptions overruled.