O'Donnell v. Pollock

49 N.E. 745, 170 Mass. 441, 1898 Mass. LEXIS 243

• Court: Massachusetts Supreme Judicial Court
• Decided: March 1, 1898
• Status: Published

Opinion

Morton, J.

The questions, “Who kept that dog on this place, if any one? ” and, “ Whether or not you kept the dog upon this place?” involved, we think, more matter of opinion and judgment than they did of fact, and therefore were rightly excluded. Whether the defendant or some one else kept the dog could be determined only by a consideration of all of the circumstances relating to the presence of the dog on the farm where the defendant lived; in other words, the questions would have called not so much for statements of facts coming within the observation of the witness as for statements of conclusions as the result of those observations. The witness was allowed by the court to state any facts bearing on the question at issue.

In view of the finding of the jury that the defendant was not the owner, no harm was done the defendant by the refusal to rule that the defendant could not be liable both as owner and keeper. One who suffers a dog to remain temporarily on his premises is not, as matter of law, its keeper. Whittemore v. Thomas, 153 Mass. 347, And we think that one who harbors a dog for a short time is not liable under all circumstances as its keeper. It would have been error, therefore, to have permitted or instructed the jury to find unqualifiedly that one who harbored a dog would be liable as its keeper. The question who kept the dog was a question of fact for the jury, under suitable instructions, and there is nothing to show that it was not só treated.

We think that the ruling that there was no evidence to show that the dog was kept by Winn at the time of the biting was correct.

Exceptions overruled.