Buddington v. Shearer , 37 Mass. 477 ( 1838 )

Wilde J.

delivered the opinion of the Court. Generally in cases of tort it is sufficient to prove a part of an allegation in a writ, if it be divisible and capable of a partial proof, provided the part proved is actionable. But if the allegation be descriptive merely, it must be fully proved. 3 Stark. Ev. (Metcalf’s ed.) 1550.

Thus, where a party averred that he was proprietor and editor of a newspaper calumniated by the defendant, it was held to be insufficient to prove merely that he was proprietor. Heriot v. Stuart, 1 Esp. R. 437. So if a lessee and farmer of tithes describes himself as the owner and proprietor, the description is insufficient. Stevens v. Aldridge, 5 Price, 334. So where the declaration against the maker ol a promissory note, payable to the bearer, unnecessarily alleged an indorsement by the payee, it was held that the plaintiff was bound to prove it. Waynam v. Bend, 1 Campb. 175. And genevally where the terms of a contract are stated, though unnecessarily, they must be proved. Upon these authorities it appears to the Court, that the averment, that the defendants were the owners and keepers of the dog doing the mischief complained of, was a descriptive averment, and required full and strict proof. The objection however is technical, and may be obviated by a slight amendment of the declaration.

Another exception was taken to the instructions to the jury, which is of more importance. It was proved at the trial that the mischief complained of was done by a dog belonging to one Mowry together with the defendants’ dog, and on this evidence the jury were instructed, that the owner of each dog was liable for all the damage which both dogs did, while they were thus together. The law was laid down differently in the action of Russell v. Tomlinson et al. 2 Connect. R. 206, an action founded on a similar statute of the State of Connecticut ; and we are of opinion that that case was rightly decided, for the reasons there stated. That action was brought against two owners of dogs, who owned the dogs severally. And the Court held that a joint action could not be maintained against them, although the mischief were done by the dogs jointly ; but that each owner was liable only for the mischief done by his own dog. This decision seems to be conformable to the principles of justice, and according to the true construction of the statute, by which the owner of any dog is made liable for the damage done by his own dog, and not by the dog of another. And by separate actions the party injured would have a full indemnity, for the recovery in an action against one owner would be no bar to an action against another.

There may be some difficulty in ascertaining the quantum of damage done by the dog of each, but the difficulty cannot be great. If it could be proved what damage was done by one dog, and what by the other, there would be no difficulty ; and on failure of such proof, each owner might be liable for an equal share of the damage, if it should appear that the dogs were of equal power to do mischief, and there were no circumstances to render it probable that greater damage was done by one dog than by the other. But whatever the difficulty may be, it can be no reason why one man should oe liable for the mischief done by the dog of another.

JVetr trial granted.