Anderson v. Middlebrook , 202 Mass. 506 ( 1909 )

Loring, J.

The only question presented by this bill of exceptions is whether the jury were warranted in finding that the , dog which bit the plaintiff was kept jointly by both defendants on July 8, 1907, the day in question.

The defendant Middlebrook testified that before May, 1905, certain dog kennels, called the Revere Collie Kennels, had been established by him on premises owned by him, and on that day he had sold all the dogs and the good will of the business done there under the name of the Revere Collie Kennels to the defendant Ellen Johnson, who “ was in the employ of his, Middle-brook’s, wife. ” That after that date the dogs were kept on these same premises owned by Middlebrook, that Middlebrook had accompanied the dogs to various dog shows where the dogs were exhibited; and that he had accepted the fee for service of one of the dogs, and that the defendant Johnson also took the fee for service when she was about. He also testified that he had bought food for the dogs. It is true that Middlebrook testified that he never had received any benefit or profit from any dogs kept on the premises since the sale in 1905; that when he took the dogs to shows it was done as a favor to the defendant Johnson, and that the fee for service received by him was turned over to her and the food bought by him was bought for the defendant Johnson. But, the plaintiff having called the defendant as an ■ adverse witness under the statute (R. L. c. 175, § 22), was not bound by his testimony. Emerson v. Work, 185 Mass. 427, and so the jury could accept the facts testified to by him and disbelieve the explanations. Hankinson v. Lynn Gas Electric Co. 175 Mass. 271.

There was also evidence that both defendants had been seen walking together accompanied by a group of dogs, including the dog that bit the plaintiff, and that the defendant Middlebrook had been seen feeding the dog in question. It was in evidence further that the kennels had been carried on under the same name, to wit, Revere Collie Kennels, since the date of the bill of sale.

The defendant Johnson, to whom Middlebrook made the bill of sale of the Revere Collie Kennels as testified to, who “ was in the employ of his, Middlebrook’s, wife,” did not appear in court.

“ Evidence was introduced by the defendants that the defendant Johnson was duly licensed, in accordance with the provisions of law, to keep various dogs on the said premises ; and from the description contained in several of the licenses, which were introduced in evidence, the jury might have inferred that the dog which caused the injury was included in the number so licensed.”

We are of opinion that this evidence warranted a finding that after the bill of sale the dogs were kept by the defendants jointly within the rule laid down in Barrett v. Malden & Melrose Railroad, 8 Allen, 101; Collingill v. Haverhill, 128 Mass. 218; McLaughlin v. Kemp, 152 Mass. 7; Whittemore v. Thomas, 153 Mass. 347; O'Donnell v. Pollock, 170 Mass. 441; Boylan v. Everett, 172 Mass. 453.

Exceptions overruled.