Whittemore v. Thomas

Morton, J. This was an action brought against the defendant, as keeper of a dog, to recover for injuries sustained by the plaintiff from its bite. The court below ruled, as matter of law, upon the whole evidence, against the defendant’s objection and exception, that the defendant was the keeper of the dog, and the only question submitted to the jury was that of damages. The case comes here on a report of all the material evidence bearing on the question of keepership, and the report concludes with the reservation that, if the ruling was right, judgment is to be entered on the verdict for the plaintiff; if it was not right, then, by agreement of parties, judgment is to be entered for the defendant. We fear that this agreement does not sufficiently protect the plaintiff’s rights, but we must deal with the case as it is presented to us. The evidence undoubtedly shows that, though the defendant was not the owner of the dog, it was kept on his premises with his knowledge and acquiescence. But while it is true that a person not the owner of a dog may be liable as its keeper, the mere fact that a dog is kept by its owner on the premises of another with the knowledge, or acquiescence, or permission of the owner of such premises, does not of itself make the owner of said premises the keeper of the dog. Collingill v. Haverhill, 128 Mass. 218. If the contrary were true, then a landlord might be liable as the keeper of a dog which belonged to and was at all times in the possession and control of a tenant or boarder, or even of a guest of a tenant or boarder. The law does not require the owner or occupant of premises to eject every dog that may be or may come upon them, at the risk, unless he does so,, of being adjudged its keeper. Mo doubt a dog may be upon the premises of another under such circumstances that a jury would be warranted in finding that the owner of such premises was the keeper of it. The case of Barrett v. Malden & Melrose Railroad, 3 Allen, 101, furnishes an illustration of this. And when the [350] facts are not in dispute, or are substantially agreed, the court may rule upon the question as matter of law, provided there are no inferences to be drawn from the facts in proof. Gavett v. Manchester & Lawrence Railroad, 16 Gray, 501. Todd v. Old Colony & Fall River Railroad, 7 Allen, 207. In the present case, while certain material facts were undisputed, other material facts, with the inferences to be drawn from the facts in proof, were in controversy. Thus, except the remark by the defendant, testified to by the plaintiff’s husband and denied by the defendant, that the dog kept close watch on the hogs, there was no direct testimony that the dog was on the premises “ for the benefit or in the interest of the defendant,” which was evidently regarded in Collingill v. Haverhill, ubi supra, as one of the elements there entering into the question whether the defendant was or was not the keeper. It is possible that the jury might have inferred from all the testimony in the case that the dog was on the defendant’s premises for his benefit or in his interest; but it was plainly for the jury, and not the court, to draw the inference. The conversation with the defendant, also testified to by the plaintiff’s husband, and which implied an admission of liability by the defendant, was also contradicted by him. There was likewise evidence that the defendant exercised no control over the dog, and gave no directions concerning it, and did not interfere with the management of it by Rogers, and had nothing whatever to do with it, and that he did not feed it or pay the license for it, and simply .acquiesced in the keeping of it by Rogers at the farm. We cannot say, upon this and other testimony in the case, that the jury would not have found that the defendant was not the keeper of the dog. In Barrett v. Malden & Melrose Railroad, ubi supra, the question whether the defendant was or was not the keeper was submitted, under proper instructions, to the jury. That is also true of Cummings v. Riley, 52 N. H. 368, which is much relied on by the plaintiff. In Auchmuty v. Ham, 1 Denio, 495, also cited by the plaintiff, the court held that the owner of a farm on which a laborer was employed who lived elsewhere, and was accompanied to and from his work by a dog, which remained with him through the day on the farm, could not be considered as in possession of the dog, so as to be liable under a statute which pro [351] vided that any person in possession of a dog or who suffered one to remain about his house for the space of twenty days should be deemed its owner, and responsible for injury committed by it. See McLaughlin v. Kemp, 152 Mass. 7. The counsel for the plaintiff has not referred us to any case in which, upon a state of evidence similar to that in the present case, the court has ruled, as matter of law, that the defendant was to be regarded as the keeper, and that the only question for the jury was one of damages. We fail to see how the ruling of the court below can be upheld, and according to the terms of the report the entry must be, Judgment for the defendant.