Mitchell v. Chase

Peters. C. J. This is an action of trespass for injuries suffered by a child from the result of an attack upon her by an enraged dog ; the original declaration containing two counts in which it was charged that the defendant was at the time of the attack the owner or keeper of the dog. Objection was taken to the allowance by the court of an amendment bj' adding a third count containing the substance of either of the original counts with the words appended thereto, and not in the original counts, as follows : " Whereby and by force of the statute in such case made and provided an action hath accrued to the plaintiff to have and recover of the defendant double the amount of damages done as aforesaid." There is no doubt that the action is remedial and not penal in the technical sense, and that the declaration is amendable, if an amendment be considered desirable for a fuller statement of the plaintiff’s claims in the case. The form of the action indicated the intention of the pleader to institute an action under the statute which allows double damages. Detached portions of the judge’s charge are grouped together in an irregular way in the bill of exceptions, in the main unquestionably favorable to the defendant, and we do not understand by the defendant’s brief that any objection is urged against these sayings or rulings of the court, excepting that complaint is made of the remark by the judge that [177] the defendant might be regarded as the keeper of another person’s dog so as to establish her liability under the statute referred to, even though she might be keeping the dog without the owner’s consent. It seems the defendant set up the contention that, although formerly the owner of the dog, she had prior to the injury complained of sold him to another person, •and that, if she harbored the dog after the sale, it was without the owner’s consent. We think such an instruction would be unobjectionable. If the dog persisted in returning to his former mistress and she allowed him to remain, she would become his keeper for the time being. One may be in the wrongful possession of a dog and still be his keeper. The question was whether a keeper or not and not whether a rightful keeper. A person might even steal a dog and become his keeper. The fact relied on would be a legitimate piece of evidence bearing on the issue whether she was really the dog’s keeper or not. Exceptions overruled.