Malafronte v. Miloni , 35 R.I. 225 ( 1913 )

Vincent, J.

This is an action of trespass on the case to recover damages for certain injuries to the plaintiff and his horse alleged to have been caused by the defendant’s dog. The plaintiff claims that while he was driving his horse and wagon in one of the public streets of Bristol, Rhode Island, the defendant’s dog attacked and bit the horse, causing the horse to become unmanageable and uncontrollable and finally to run away, and throw the plaintiff out of the wagon, whereby he sustained severe injuries besides incurring some expenses in the treatment of the injuries to the horse. The plaintiff’s declaration is in two counts. The first count alleges that by reason of said defendant’s dog biting said plaintiff’s horse on a public highway, the^ said plaintiff’s horse became wholly uncontrollable and bolted and ran away for a distance of about thirty feet, when the wagon collided with the curbstone with sufficient force to throw the plaintiff from his said wagon to the sidewalk, whereby he sustained injuries to his arm of a permanent character.

The second count is for injuries done to the horse which was bitten and wounded by the defendant’s dog. At the conclusion of the testimony the trial court, upon motion, directed a verdict for the defendant upon the first count of the plaintiff’s declaration upon the ground that Section 3 of Chapter 111 of the General Laws of 1896, that being the statute in force at the time of the alleged injury, was not broad enough to cover injuries which did not proceed from the direct attack of the dog upon the person of the plaintiff.

The case went to the jury upon the second count and a verdict was returned therein in favor of the plaintiff for the sum of five dollars, that being the full amount of the damages shown to have been sustained by the plaintiff on account of injuries to his horse.

(1) Section 3, Chapter 111, General Laws of 1896, upon which the plaintiff’s action is based, is as follows: “If any dog shall kill, wound or worry, or assist in killing, wounding or worrying, any sheep, lamb, cattle, horse, hog, swine, fowl, or other domestic animal, belonging to or in the possession of any person, or shall assault or bite or otherwise injure, any person while travelling the highway or out of the enclosure of the owner or keeper of such dog, the owner or keeper of such dog shall be liable to the person aggrieved as aforesaid, for all damage sustained, to be recovered in an action of trespass on the case, or in an action of trespass, with costs of suit; and if afterwards any such damage be done by such dog as aforesaid, the owner or keeper of such dog shall pay to the party aggrieved double the damage, to be recovered in manner aforesaid; and an order shall be made by the court before whom such second recovery shall be had, for killing such dog, which order shall be executed by the officer who shall be charged with the execution thereof; and it shall not be necessary, in order to sustain any such action, to prove that the owner or keeper of such dog knew that such dog was accustomed to do such damage.”

At the common law an action of this character could not be maintained without proof that the defendant had such knowledge of the previous acts and character of the dog as would reasonably suggest to him the danger of permitting him to remain at large. One purpose, and possibly the main purpose, of this statute was to relieve plaintiffs from the burden of proving knowledge which was frequently difficult for them to do, their inability in that regard often resulting practically to a denial of justice. We cannot, however, believe that this statute was designed to be limited to this one specific relief. The language employed “or shall assault or bite or otherwise injure any person” seems to us to indicate that something more was intended. We cannot pass over the words “otherwise injure any person” without attaching to them some meaning and some importance. We think that the plaintiff was “otherwise injured” through the behavior of the defendant’s dog and that the statute before referred to is broad enough to sustain the plaintiff’s notion.

Anthony V. Pettine, for plaintiff. Antonio A. Capotosto, for defendant.

Inasmuch as it is apparent that all of the matters alleged in the plaintiff’s declaration depend upon and must be .supported by substantially the same testimony there should be a new trial upon both counts.

The defendant’s exceptions are overruled, the plaintiff’s exceptions are sustained, and the case is remitted to the Superior Court for a new trial upon both counts.

Sheffield & Harvey, Charles P. Ryan, for complainant. Waterman & Greenlaw, for respondent; Charles E. Tilley, of counsel.