Opinion
September 13, 1985.
Present: Doyle, P.J., Forte Banks, JJ.
Tort, Personal injury; Dog bite Practice, Civil, Requests for rulings; Findings. Words, Animal's "keeper."
Report of court's dismissal of defendants' report. Action heard in the Cambridge Division by Donnelly, J.
Michael V. Iudice for the plaintiff.
Daniel J. Fern for the defendants.
This is an action in tort to recover damages for injuries suffered by the plaintiff when she was bitten by a dog allegedly owned or kept by both defendants.
Judgment was entered against both defendants in the sum of $8,500.00 and the plaintiff was limited to a single recovery.
Defendant Sally Morse claimed a report to this Division on a charge of error in the trial court's disposition of defendant's requests for rulings numbers 1 through 6. The court's disposition of these requests raises a single issue as to whether there was any evidence adduced at trial to support a finding in the plaintiff's favor that the defendant was responsible as a keeper of the dog in question.
General Laws, c. 140, § 155 states, in relevant part, that "[i]f any dog shall do any damage to either the body or property of any person, the owner or keeper . . . shall be liable for such damage. . . " See Rossi v. DelDuca, 344 Mass. 66, 68-69 (1962); Curran v. Burkhardt, 310 Mass. 466, 466-467 (1941); Canavan v. George, 292 Mass. 245, 247 (1935). The mere ownership of premises upon which a dog is kept does not alone render the property owner liable as a keeper of the dog, even where the dog continues upon the premises with the knowledge, acquiescence or even permission of the property owner. Whittemore v. Thomas, 154 Mass. 347, 349 (1891). See also, McIntire v. Leland, 229 Mass. 348, 351 (1918); Boylan v. Everett 172 Mass. 453, 457 (1899). A "keeper" is one who cares for or maintains a domestic animal, or who harbors the animal with an assumption of custody, management and control. Maillet v. Mininno, 266 Mass. 86, 89 (1929). See also, Koller v. Duggan, 346 Mass. 270, 271-272 (1963); Anderson v. Middlebrook, 202 Mass. 506, 509 (1909); McLaughlin v. Kemp, 152 Mass. 7, 8-9 (1890).
Whether a person is the keeper of a dog within the purview of G.L.c. 140, § 155 presents a question of fact for the trial court. Siira v. Shields, 360 Mass. 874 (1972); Knowlton v. Behrs, 58 Mass. App. Dec. 95, 99 (1976). The report in the instant case is not devoid of evidence to support the trial court's subsidiary finding that defendant Sally Morse was a keeper of the dog in question. There was thus no error in the trial court's disposition of requests 1 through 6. Further, no request for ruling was filed by the defendant to test the legal sufficiency of the evidence to sustain a finding for the plaintiff against Sally Morse. Accordingly, such issue was not before us. Toupence v. Easton Materials Handling Equip., Inc., 1985 Mass. App. Div. 33, 34; New England Copy Specialists, Inc. v. Massachusetts State Pharmaceutical Assoc. 1983 Mass. App. Div. 139, 140.
There being no error, the report is dismissed.