Carroll v. Marcoux , 98 Me. 259 ( 1903 )

Emery, J.

Upon reading in the bill of exceptions that the defendant’s dog was provoked by the wilful and wanton entrance of the jdaintiff, a peddler, into the defendant’s house without permission and thereupon bit him, the first and natural imjiulse, especially of one who likes dogs and dislikes peddlers, probably would be to say that the jdaintiff was rightly served and had no cause of action. But the law does not always accord with natural impulses. Indeed its purpose often is to restrain and control them. The jdaintiff’s right in this case is not to be determined by passionate impulses however natural, but by the passionless rules of positive law.

At common law the owner or keeper of a dog or a domestic animal ivas liable for damages done by the animal only in case the animal had a vicious or mischievous disposition known to the owner or keeper. We have a statute, however, which makes the owner or keeper of a dog liable for damage done by it without regard to the disposition of the dog, or the owner or keeper’s knowledge, or his care or want of care. “When a dog does damage to a person .... his owner or keeper forfeits to the person injured the amount of the damage done, to be recovered in an action of trespass.” Public Laws of 1895, c. 115. By this statute the damage done by a dog is made a trespass, since a trespass action is prescribed as the remedy. A damage to the person by a dog is a trespass to the person, as much so as an assault and battery. Hussey v. King, 83 Maine, 568; Pressey v. Wirth, 3 Allen, 191. Evidence of the character or disposition of the dog is not admissible. Kelly v. Alderson, 37 Atl. Rep. 12 (R. I.). The fact that' the dog did the damage merely in play, in exuberance of good nature, is immaterial. The owner is nevertheless liable. Hathaway v. Tinkham, 148 Mass. 85. The plaintiff’s action is upon this statute.

In considering the defense set up in avoidance of this statute, the following circumstances should be noted: the entry was in the day time; it does not appear that the plaintiff was forbidden to enter, or that his entry was made with any ulterior wrong intent, or noisily, or with threats or alarming demonstrations, or in any other manner than quietly though abruptly and suddenly; it does not appear that any of the human inmates were at all alarmed, or disturbed, or even annoyed by the entry; it does not appear that the plaintiff made any attack upon or demonstration toward the dog, or came in contact with it or was aware of its presence; it does not appear that the dog was a watch-dog set to guard the house, but it rather appears that it was only a common hound, or hunting dog, lying behind the stove; and it does not appear that the plaintiff was requested to leave or that he gave offense to any other inmate.

Under these circumstances a similar attack upon the plaintiff by any human inmate of the house would have been a trespass for which the plaintiff could have recovered. Though himself a trespasser, he was not thereby outlawed and force could not have been lawfully used upon him until he had refused to leave, and then only such force as would have been necessary to remove him. If protected by the law against a sudden attack without warning by any human inmate despite his trespass,- was he not also protected by the law as embodied in the above statute against the sudden and precipitate bite of the dog? Again, under the above circumstances had the entry been by permission, express or implied, then, however much it provoked the dog, the defendant would not have been exempted from liability under the statute for its attack. We assume the correctness of this proposition to be too plain for argument.

Does the fact that the plaintiff’s entry was without permission discharge the defendant from what would otherwise have been his statutory liability? We think not. It was the visible, physical aspect of the entry, not the want of permission for it, that provoked the dog. We cannot attribute to the dog the faculty of determining whether the entry was a trespass or not, and of inflicting or withholding his bite accordingly. It is immaterial that the dog did not see any permission given. Had it been given days before in the dog’s absence, or simply inferable from the custom of the neighborhood or the intimacy of the'parties, the legal effect would have been the same as if expressly and audibly given in the dog’s presence.

We do not find any case holding that mere trespass, an entry without permission upon the real estate of the owner of a dog without any other provocation to the dog, exempts the owner from liability. We find several holding the contrary. Since by the statute the liability of the owner or keeper of a dog of the most peaceful disposition, kept with the utmost care, is made equal to the common law liability of the owner or keeper of an animal with a known vicious or mischievous disposition, cases at common law as to such liability are applicable to cases under the statute. In Smith v. Pelah, 2 Stra. 1264, the plaintiff accidentally trod upon the dog at the owner’s own door. Held, that the owner was liable. In Pieot v. Moller, 3 E. D. Smith, 576 (N. Y.) it was held that the fact that the injured person was trespassing upon the owner’s premises at the time the injury from the dog was received is immaterial. In Loomis v. Terry, 17 Wend. 496, 31 Am. Dec. 306, the person injured by the dog was at the time trespassing on the owner’s premises; but it was held that that fact did not exempt the owner from liability. Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec. 175, a case much and approvingly quoted, was similar to the case at bar. The plaintiff, a peddler, entered a house without permission and upon so entering was attacked by a dog. The owner was nevertheless held liable. In Sherfey v. Bartley, 4 Sneed, 58, 67 Am. Dec. 597, the court below was held to have rightly refused a requested instruction that if, at the time of the injury to him by the dog, the plaintiff was trespassing upon the owner’s premises the owner was not liable. In Marble v. Boss, 124-Mass. 44, the plaintiff while in the defendant’s pasture was attacked by the defendant’s stag kept in that pasture. The court below was held to have rightfully refused a requested instruction that if the plaintiff was trespassing in the pasture at the time of the attack, he coxxld not recover. In Meibus v. Dodge, 38 Wis. 300, 20 Am. Rep. 6, the defendant had left his dog in his sleigh to guard it. The dog bit a child who came to the sleigh and meddled with the whip lying therein. Held that the defendant was liable. In Peck v. Williams, 61 L. R. A. 351, (R. I.) the plaintiff suddenly and without right climbed into the defendant’s cart, and was bitten by the defendant’s dog then lawfully in the cart. Held that the defendant was liable. In Plumley v. Birge, 124 Mass. 57, the plaintiff, a boy of thirteen, struck the dog and was thereupon bitten. A verdict for the plaintiff was sustained. In Sanders v. O’Callaghan, 82 N. W. Rep. 969, (Iowa) the court, citing some of the above cases, held to be incorrect the proposition that one going upon the premises of another without permission and withoxit inquiring whether dogs are kept tliexo or not is guilty of contributory negligence.

Does the circuixxstance that the plaintiff’s entry was wilful and wanton discharge the defendant from his otherwise statutory liability? What we have said above as to the effect of the plaintiff’s exxtx-y being without permission applies, we think, equally well to this question. The words “wilful and wanton,” even as they were used and defined by the presiding justice, do not at all color or affect the visible, physical aspect of the entry. The wilfulness and wantonness were wholly in the plaintiff’s mind. It was still only the visible, physical entry, not the plaintiff’s thoughts or state of mind, which px-ovoked the dog. The most quiet entry, one that would not attract the attention of such a dog at all, may yet be both wilful and wanton to an extreme degree. A most turbulent and disturbing entry, one calculated to excite and provoke the most amiable dog, may be neither wilful nor wanton.

Our decision, therefore, and all that we do decide, is that the mere fact that the plaintiff wilfully and wantonly entered upon the defendant’s premises without permission (such entry being the sole provocation of the dog’s attack) does not alone outlaw the plaintiff from the protection of the statute cited.

Whether the plaintiff, as contended by the defendant, was so rude, noisy, or threatening in his manner of entry, as to thereby provoke the dog is a matter of fact not stated in the bill of exceptions. Whether the rude, noisy, or threatening character of the entry, if proved, or even its abruptness and suddenness as stated showed the plaintiff to be so far in fault as to bar his right of recovery, is a question not presented here. The presiding justice ruled that the fact, (if so found) that the entry was wilful and wanton and without permission, was of itself alone a bar. This ruling being adjudged incorrect, the exceptions must be sustained.

Exceptions sustained.