Lacker v. Strauss

116 N.E. 236, 226 Mass. 579, 1917 Mass. LEXIS 1034

• Court: Massachusetts Supreme Judicial Court
• Decided: May 23, 1917
• Status: Published

Opinion

Pierce, J.

By the common law a dog is property, for an injury to which an action will lie. Wright v. Ramscot, 1 Wms. Saund. 108. 2 Bl. Com. 393. Chapman v. Decrow, 93 Maine, 378. Uhlein v. Cromack, 109 Mass. 273. Cummings v. Perham, 1 Met. 555. State v. M’Duffie, 34 N. H. 523. St. Louis Southwestern Railway v. Stanfield, 63 Ark. 643. 4 Bl. Com. 235. "By the common law, as well as by the law of most, if not all, the States, dogs are so far recognized as property that an action will lie for their conversion or injury.” Sentell v. New Orleans & Carrollton Railroad, 166 U. S. 698.

The defendant concedes his negligence but claims that liability to respond in an action of tort for damages for injury to an unlicensed dog arises only when the acts complained of are intentional, wanton or reckless. This position is supported by the case of Jemison v. Southwestern Railroad, 75 Ga. 444, now somewhat weakened by Columbus Railroad v. Woolfolk, 128 Ga. 631, and by Dicherman v. Consolidated Railway, 79 Conn. 427. The basis of this last decision is that no person can have such property in an unregistered dog as will enable him to maintain an action for the negligent killing of the animal. The court refuses to decide whether or not one might under any circumstances have a right of action for a wilful killing of an unregistered dog,' or for the negligent killing of a registered dog. The Dickerman case and the cáse at bar in their facts are alike only to the extent that an unlicensed dog may be killed by an officer of the law under the Maine statute, by virtue of a warrant — under the Connecticut statute without a warrant. The general rule supported by the weight of authority is that an owner of a dog, licensed or unlicensed, may maintain an action for damages against any person or corporation wilfully or negligently killing or injuring the animal. Louisville & Nashville Railroad v. Fitzpatrick, 129 Ala. 322. St. Louis Southwestern Railway v. Stanfield, ubi supra. Smith v. St. Paul City Railway, 79 Minn. 254. Harper v. St. Paul City Railway, 99 Minn. 253. We are of opinion the general rule should be followed as one sound in principle. The unlicensed dog was not a trespasser and outlaw upon the public highway. The case in this respect is governed by Carrington v. Worcester Consolidated Street Railway, 222 Mass. 119.

It follows that the case was submitted to the jury rightly and that the exceptions should be overruled.

So ordered.