Fozzy v. Kelley

U.S. District Court

Fozzy v. Kelley

1 Mass. App. Dec. 125

CourtUnited States District Court

DecidedMay 23, 1941

DocketNo. 914

StatusPublished

This text of 1 Mass. App. Dec. 125 (Fozzy v. Kelley) is published on Counsel Stack Legal Research, covering United States District Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fozzy v. Kelley, 1 Mass. App. Dec. 125 (usdistct 1941).

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Opinion

ESTES, J.

(Sanborn, & Briggs, JJ.)—This is an action to recover for injuries sustained as a result of being 'bitten by a dog of which it is alleged that the defendant was the keeper.

The Court found that the defendant was the keeper. No other issue is argued by the defendant.

The evidence on which the court found that the defendant was the keeper was (1) That the defendant took the plaintiff to a doctor and told the doctor that the plaintiff was bitten by “my dog. I wish you would fix her up.” (2) That the defendant said to the plaintiff’s mother, “I’m sorry, but my dog bit your daughter.” (3) That he, the defendant, never objected to the dog living on the premises. (4) That he had paid the license fee in Holbrook when his father was without funds. (5) That when the families were away the dog was left to guard the premises.

Under the decision of Maillet v. Minno, 266 Mass. 86, we think the issue was one of fact, and the evidence was competent on the issue whether the defendant “owned the dog and was keeping it.” Whittemore v. Thomas, 153 Mass. 347; McLaughlin v. Kemp, 152 Mass. 7, and Collingell v. City of Haverhill, 128 Mass. 218. The only cases cited by the defend[126]*126ant are similar authorities. See also O’Donnell v. Pollock, 170 Mass. 441, and Boylan v. Everett, 172 Mass. 453.

In view of the written findings by the court, no prejudicial harm was done the defendant by refusing his requests

Report dismissed.

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ESTES, J.

(Sanborn, & Briggs, JJ.)—This is an action to recover for injuries sustained as a result of being 'bitten by a dog of which it is alleged that the defendant was the keeper.

The Court found that the defendant was the keeper. No other issue is argued by the defendant.

The evidence on which the court found that the defendant was the keeper was (1) That the defendant took the plaintiff to a doctor and told the doctor that the plaintiff was bitten by “my dog. I wish you would fix her up.” (2) That the defendant said to the plaintiff’s mother, “I’m sorry, but my dog bit your daughter.” (3) That he, the defendant, never objected to the dog living on the premises. (4) That he had paid the license fee in Holbrook when his father was without funds. (5) That when the families were away the dog was left to guard the premises.

Under the decision of Maillet v. Minno, 266 Mass. 86, we think the issue was one of fact, and the evidence was competent on the issue whether the defendant “owned the dog and was keeping it.” Whittemore v. Thomas, 153 Mass. 347; McLaughlin v. Kemp, 152 Mass. 7, and Collingell v. City of Haverhill, 128 Mass. 218. The only cases cited by the defend[126]*126ant are similar authorities. See also O’Donnell v. Pollock, 170 Mass. 441, and Boylan v. Everett, 172 Mass. 453.

In view of the written findings by the court, no prejudicial harm was done the defendant by refusing his requests

Report dismissed.

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Bluebook (online)

1 Mass. App. Dec. 125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fozzy-v-kelley-usdistct-1941.

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