351 Mass. 502

William F. Mills vs. Chester H. Keeler & another.

Norfolk.

December 8, 1966.

January 3, 1967.

Present: Wilkins, C.J., Spalding, Cutter, Kirk, & Reardon, JJ.

Robert D. O’Leary for the plaintiff.

Sanford Konstadt for the defendants.

Wilkins, C.J.

This is an appeal by the plaintiff from an order of a judge of the Superior Court sustaining a demurrer to the declaration, which is in tort. There are two counts.

Count 1 alleges that since August, 1964, the defendant Chester H. Keeler has been “the owner and/or the keeper” of a dog at 1 Bichard Boad, Bandolph; that during that period the dog was a nuisance by reason of excessive barking and other disturbances [sic]; that the dog was a source of annoyance to the plaintiff, a sick person residing in the vicinity; that the plaintiff complained in writing to the selectmen; that a hearing was held and the dog was ordered to be restrained for eight hours on the days when the plaintiff was at home; that the defendant has not restrained the dog but has permitted the excessive barking and other dis*503turbances [sic] to continue as a result of which the plaintiff’s health has been affected, he has been prevented from pursuing his usual vocation, and has incurred expenses for medicines and medical attendance.

Count 2 is identical except that it is directed against the defendant Gladys Keeler.

There are four grounds of demurrer, all in substance to the effect that the declaration does not state a cause of action. Only the second ground undertakes to state a specific reason, which is: “ There is no cause of action against the owner of a dog for personal injuries, and/or mental anguish, without physical contact between the plaintiff and the dog.” The defendants’ brief cites Spade v. Lynn & Boston R.R. 168 Mass. 285, and Sullivan v. H. P. Hood & Sons, Inc. 341 Mass. 216.

The description in the declaration of the plaintiff’s complaint to the selectmen and of the latter’s order is similar in phraseology to G. L. c. 140, § 157, as amended through St. 1934, c. 320, § 20.1 Obviously this is the source of the allegations of the declaration. No further steps appear to have been taken by the plaintiff or either defendant pursuant to § 157.

The declaration does not allege whether the defendants’ conduct was intentional, wanton or reckless, or negligent. *504On the allegations that conduct was nonfeasance. The single word “nuisance” by itself does not supply a case good against demurrer. See Whitcomb v. Vigeant, 240 Mass. 359, 362; Ted’s Master Serv. Inc. v. Farina Bros. Co. Inc. 343 Mass. 307, 311-312. “Conclusions of fact unless they are necessary inferences from the particular facts alleged are not admitted by a demurrer.” Foster v. Shubert Holding Co. 316 Mass. 470, 474. J. J. Gordon, Inc. v. Worcester Telegram Pub. Co. Inc. 343 Mass. 142,143. The nuisance here alleged is limited to “excessive barking and other disturbances.” “Other disturbances” means those of the same kind as barking. Crown Shade & Screen Co. v. Karlburg, 332 Mass. 229, 231-232. Opinion of the Justices, 337 Mass. 777, 782. There obviously was no physical force applied to the plaintiff whose “health has been affected” apparently because of mental or emotional disturbance.

The plaintiff argues only vaguely as to the precise basis of his cause of action. The impression we receive from his meager brief is that his theory is that the demurrer admits that there is a nuisance due to excessive barking and other disturbance, in the language of G. L. c. 140, § 157, which he paraphrases without express reliance; that the order to restrain and the owner’s failure to comply which permitted the nuisance to continue automatically gave rise to a cause of action under the entire G. L. (Ter. Ed.) c. 243, entitled, “Actions for Private Nuisances.” In support no case or particular statutory provision is cited. We think that no cause of action for an injury solely to health has been stated. It is not our function to puzzle out a cause of action and to find authorities to support it.

Order sustaining demurrer affirmed.

Mills v. Keeler
351 Mass. 502

Case Details

Name
Mills v. Keeler
Decision Date
Jan 3, 1967
Citations

351 Mass. 502

Jurisdiction
Massachusetts

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