Russell v. Tomlinson

2 Conn. 206

• Court: Supreme Court of Connecticut
• Decided: June 15, 1817
• Status: Published

Opinion

Swift, Ch. J.

Owners art: responsible lor the mischief done by their dogs ; but no man can be liable for the mischief done by the dog of another, unless he had some agency in causing the dog to do it. When the dogs of several persons do mischief together, each owner is only liable for the mischief done by his own dog ; and it would be repugnant to the plainest principles of justice, to say, that the dogs of different persons, by joining in doing mischief, could make their owners jointly liable. This would he giving them a power of agency, which no animal was ever supposed to possess. It is true, that there inay be some diiik ulty in ascertaining, in separate actions, the quantum oí' damage done by the dog of each : hut this can be no reason why one man should be accountable for mischief done by the dog of another.

I would advise that a new trial he granted.

GociD, .1.

The only question necessary to be decided» jSj whether t!ie dr fend ants are liable jointly ?

Upon this point, the statute, upon which the action is brought, furnishes no rule of decision. It contains, indeed, . . , , , two new provisions, ot which one merely gives to the party injured, an aclion of trespass, instead of case, and tins other only dispenses \\ i t i s the necessity of science in the defendant. In other respects, the case stands, as if no such statute had been made, and is to be governed, of course, by the rules of the common law.

II', then, the plaintiiThad brought trespass on the case, laid with a scirvler, could the actum be maintained against the defendants, as for a joint wrong ? It is not pretended, that there is any such case in the books ; and I know of no principle, which would warrant one. It is true, that, according to the form of declaring in trespass, for mischief done by animals, the owner is charged with having with them personally committed the injury. But the action, whether it sounds in trespass, or case, is, substantially, founded upon his negligence, in not duly restraining them. Now, the neglect of .2. in keeping an animal, which belongs solely to himself, cannot be the neglect of B. in keeping his. The duties, imposed upon them, by law7, as owners, are several; and if there is no joint duty, there can be no joint neglect, or omission, of duty — and of course, I think, no joint liability.

The difficulty of ascertaining the proportion of mischief, done by each of the twro animals, is of very little practical consequence, in any view of the case. For, as to the danger of injustice to either of the owners, from the chance of his being subjected to an undue proportion of the damages, the risk is the same, whether their liability is joint and several, or several only. And the suggestion, that, unless they are jointly chargeable, there is danger, that the plaintiff may fail of obtaining complete justice, is founded upon the assumption, that the recovery of a part satisfaction, in a several action against cue of them, would bar a recovery for the residue, against the other. But if a recovery, had against one, should bo for only a part of the injury ; that fact, I trust, is a proper subject of averment, and may be replied in an action against the other, to a plea, alleging the former recovery. As to this point, the analogies appear even stronger, than the case supposed would require. Lacon v. Barnard, Cro. Car. 35. Field v. Jellicus, 3 Lev. 124. Sedgeworth v. Overend, 7 Term Rep. 279.

The other Judges were of the same opinion.

New trial to be granted.