Rowe v. Bird

The opinion of the court was delivered by Redfield, J. Was the exclusion of the defendant’s evidence tending to prove that the plaintiff’s dog had the vicious habit of worryingv,sheep, and might have done the mischief complained of, error ? As the case is stated, we do not think the exclusion of this evidence error. If the evidence relied upon by the plaintiff had been altogether circumstantial, and the fact that the defendant’s dog was prone to do such mischief, and was at that time at large and in the .vicinity, was relied upon to prove the fact that the mischief was done by defendant’s dog, then, to modify and rebut such presumption, the proof that other dogs with like propensities were in the vicinity, and had like opportunity to do the mischief, would, we think, be admissible. II. We think the second count is a declaration on the statute. The pleader briefly but clearly states that this dog, by defendant owned and kept, did, at a lime and place named, worry, wound, and kill thirty of plaiutiffls sheep, to the great damage of the plaintiff, and contrary to the form, force, and effect of s. 9, c. 104, of the Gen. Sts. of Vermont. ' These wrongs and injuries are alleged to have been done contrary to this particular statute, for which damage is claimed. Whether the plaintiff could, under this declaration, have recovered double damages without declaring speeificallg for it, we need not discuss, as that question is not raised. III. It is claimed that Green’s dog was concerned in the wrong and injury to the sheep, and that fact known at the time to the plaintiff, and therefore Green should have been joined in the suit. It is elementary, and a familiar rule in actions of tort, that each or all are liable for a joint trespass. If, therefore, Green [581] must have been joined, the duty is imposed by force of the stat ute. The statute allows the several owners of dogs concerned in a joint mischief, to be joined, but does uot require it. Without this statute, the different owners and keepers of dogs concerned in such mischief could not be properly joined, but each must answer for the wrongs of his own dog. Russell v. Tomlinson & Hawkins, 2 Conn. 206. It is not to be supposed that by this enactment the legislature intended to deny all remedy to the owner of sheep wounded and destroyed by a pack of mischievous dogs, until he could identify in proof the owners of each and every dog concerned in the wiong. Such a construction would be unreasonable. The purpose of the statute was to facilitate rather than obstruct the remedy. Judgment affirmed.