Opinion
Decided May 3, 1938.
Under P.L., c. 150, ss. 23, 24, giving a remedy for damage occasioned by a dog "not owned or kept by" the person damaged, the word "kept" implies more than a mere harboring of the animal for a limited purpose or time; and a person becomes liable as a "keeper" only when, either with or without the owner's permission, he undertakes to manage, control or care for a dog in the manner of dog-owners in general. One who permits the casual presence of a dog upon his premises is not its "keeper" if he merely feeds or shelters it. One who retains another's lost dog in his possession for only a limited time and only for the purpose of delivering it to its owner on demand, exercising no dominion over the animal except for that purpose, is not a "keeper" within the meaning of the statute and is entitled to recover for injuries caused to his own cattle by the dog, in an action against the owner under P.L., c. 150, ss. 23, 24.
CASE, under P.L., c. 150, ss. 23, 24, to recover double damages for injuries occasioned to the plaintiff's cattle by the defendant's dog. At the close of the plaintiff's opening statement the defendant moved for a nonsuit and the question of whether or not the plaintiff has a cause of action on the facts stated therein and in his special declaration was transferred without ruling by James, J.
The declaration alleges "that on or about the 20th day of November, 1935, the defendant was the owner of a certain dog which he allowed to become lost and which later the plaintiff found upon his farm in the town of Millsfield; that the plaintiff tied the dog in his barn and immediately wrote the defendant to come and get the same; that before the defendant came to get his dog the dog broke loose and ran into the cow barn of the plaintiff in which were several head of cattle, and the dog bit, wounded or worried eight of the same, infecting them with rabies which caused them to die or be killed." In further elaboration of the facts stated in the special declaration counsel for the plaintiff asserted in his opening statement "that the defendant, Mr. Bujold from Nashua, was up in Errol hunting in the fall of 1935, and had his dog with him, his property; that the dog wandered away and was lost; that before Mr. Bujold went home to Nashua he circulated around the farmers who lived near where he was hunting and described his dog to different farmers among whom was the plaintiff in this case, and asked these people to keep an eye out for his dog, with the further instruction that if his dog was found to tie him up and notify him immediately and he would come and get him, because he hated to lose the dog because he was a valuable dog."
Carlton G. Rayno and Karl E. Dowd (Mr. Dowd orally), for the plaintiff.
Thomas J. Leonard and Hinkley Hinkley (Mr. Walter D. Hinkley orally), for the defendant.
The plaintiff does not contend that he has a right of action against the defendant at common law. He claims only under a statute (P.L., c. 150, ss. 23, 24), which provides, section 23, that "Any person to whom or to whose property damage may be occasioned by a dog not owned or kept by him shall be entitled to recover such damage from the person who owns or keeps the dog, or has it in possession, unless the damage was occasioned to him while he was engaged in the commission of a trespass or other tort." Section 24 provides that double the amount of the damage sustained may be recovered in an action on the case.
There is nothing in the facts stated from which it might be inferred that the plaintiff committed a trespass to the personal property of the defendant when he captured and held the latter's dog or that the plaintiff's conduct in respect to it was tortious in any other way. In tying the dog up in his barn the plaintiff was doing what the defendant had specifically requested him to do, and there is nothing to indicate that in so doing the plaintiff forfeited his statutory rights by any act of carelessness or negligence. Quimby v. Woodbury, 63 N.H. 370; Smith v. Hallahan, 75 N.H. 534. Since the statute imposes liability upon dog-owners without proof of their fault, and since, by its terms, the right of action which it gives "does not inure to either the owner or keeper of the dog," (Gagnon v. Frank, 83 N.H. 122, 123), it follows that the sole question presented is whether or not at the time when the damage was done the dog was being "kept" by the plaintiff as that word is used in the statute. We do not believe that it was.
The content of meaning of the word "kept" varies so widely with the circumstances of its use that it defies any general or universal definition. As used in the statute before us it implies more than the mere harboring of a dog for a limited purpose or time. It implies rather the exercise of a substantial number of the incidents of ownership by one who, though not the owner, assumes to act in his stead. One who permits the casual presence of a dog upon his premises cannot fairly be said to be its keeper, nor does he become such when he temporarily feeds or shelters it. One becomes the keeper of a dog only when he, either with or without the owner's permission, undertakes to manage, control or care for it as dog-owners in general are accustomed to do. This is the rule in this state (Cummings v. Riley, 52 N.H. 368), as well as the rule elsewhere under statutes substantially . 3 C.J. 106; 2 Am. Jurisprudence p. 741.
The facts in the case before us, so far as stated, do not show that the plaintiff attempted to substitute himself for the owner of the dog or that he exercised or attempted to exercise the control over it which owners in general are accustomed to exercise over property of that nature. The facts show rather that the plaintiff retained the dog in his possession for a limited time and for the limited purpose of delivering it to its owner as soon as the latter could come for it, and that such acts of dominion as he exercised were only those reasonably necessary to effectuate that purpose.
Since its first enactment in 1851 (Laws 1851, c. 1124), the statute has made owners, keepers and those in possession of dogs liable for the damage which they may do. On the other hand, only owners and keepers are denied the right to recover damages for such injuries. The omission of those in possession from the class of those who may not sue and the inclusion of them in the class of those who may be held liable indicates a legislative intention to differentiate between the keeper of a dog and one who merely has possession of it. In the case at bar the plaintiff exercised only such control over the dog as was essential to retain possession of it. He did not attempt to exercise further dominion over it and consequently he was not, as a matter of law, the keeper of the dog in the statutory sense.
New trial.
All concurred.