KAREN MALCHANOFF & another vs. WILLIAM TRUEHART & another.

SPALDING, J. This action of tort was tried on two counts. In one, the female plaintiff (plaintiff), by her next friend, seeks to recover under G. L. c. 140, Section 155, as appearing in St. 1934, c. 320, Section 18, for injuries alleged to have resulted

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from an attack of a dog owned by the defendants. In the other, the plaintiff's father seeks consequential damages. The case was referred to an auditor (findings not final) who found for the defendants. Thereafter it was tried to a jury on the auditor's report and other evidence. Verdicts were returned for the plaintiff and her father. The case is here on the defendants' exceptions (1) to a ruling on evidence, (2) to the denial of their motion for directed verdicts, (3) to a portion of the charge, and (4) to the denial of their motion for a new trial.

We summarize the evidence as follows: The plaintiff (Karen), aged three years and three months when injured, lived with her parents, Walter and Janice Malchanoff, in a single family house, on Columbus Street, Chelsea. The land surrounding the house was completely enclosed by a fence three to three and a half feet high. The defendants' property adjoined the Malchanoff's property. The defendants owned a Canadian Shepherd dog named Rennie, which was described as "very similar to a Collie."

On the morning of June 3, 1961, Mrs. Malchanoff permitted Karen to go into the yard. A minute or two later, hearing a scream, she discovered Karen kneeling on the lawn and screaming; her face was bleeding. Rennie was lying on the lawn close to her. [Note 1]

Karen, who at the time of the trial was eight and one-half years old, testified subject to the defendants' objection and exception, that on the day she was injured she found Rennie in the front yard "eating a bone." There was another bone on the ground and, according to Karen, she picked it up and attempted to give it to Rennie, who dropped the bone he was eating and bit her. Karen stated that all she did to Rennie was to try to give him a bone.

1. Dr. Hyman A. Berson, a specialist in pediatrics, was called by the plaintiff. He had treated Karen for the injuries sustained by the dog bites on June 3, 1961, and had treated

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her from time to time ever since she was born. In his opinion, the plaintiff was an "alert youngster who would compare with any average child her age in intelligence." On cross-examination he testified that as to her capacity at the age of three to remember and relate what happened to her the same day "there would be no way of really knowing; except that if they go through any experience you can usually gauge a great deal by their emotional reactions at the time of an examination." The doctor was then asked, "What would your opinion be . . . of a normal child's capacity such as Karen, who is now, as I understand it, eight years old, relating something that happened to her when she was three years and three months old?" His answer was, "I doubt very much whether she could really explain fully just what happened in such a long period of time."

Karen then was called as a witness and was sworn Before she gave any testimony, the defendants objected to her testifying "on the grounds that she was an incompetent witness; that at the age of eight . . . she was now going to be asked to relate an incident that happened when she was three." The objection was overruled and Karen was permitted to testify, subject to the defendants' exception. There was no voir dire and none was requested. We do not construe the objection as raising the question whether Karen possessed the "sufficient understanding" necessary to qualify her as a witness under G. L. c. 233, Section 20. As the objection was worded, the judge could rightly assume that the sole basis of it was whether the witness should be allowed to testify to events which occurred when she was three years and three months old.

We might add that the evidence of Karen's competency to testify in general was ample. Karen, who was eight and one-half years old at the time of trial, testified that she was in the third grade at school, attended church often, and had been taught what it means to tell the truth and the consequences of not telling the truth. In addition, there was the testimony of Dr. Berson, recited above. The test of competency is not age but the capacity to understand and

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communicate coupled with a consciousness of the duty to speak the truth. Wigmore on Evidence (3d ed.) Section 506. McCormick on Evidence, Section 62. Commonwealth v. Hutchinson, 10 Mass. 225. Commonwealth v. Robinson, 165 Mass. 426. Commonwealth v. Teregno, 234 Mass. 56, 59. Commonwealth v. Tatisos, 238 Mass. 322. Commonwealth v. Welcome, 348 Mass. 68, 70.

The defendants' objection in effect asked the judge to rule as matter of law that Karen could not testify as to the earlier events which occurred when she was slightly more than three years old. At the time the objection was made, Dr. Berson, Karen's pediatrician, had testified. His testimony (summarized above) afforded some, albeit slight, basis for allowing her to testify to the earlier events. Dr. Berson's doubt "whether she could really explain fully just what happened in such a long period of time" was not an opinion that she was incapable of remembering anything (emphasis supplied). Karen testified to what happened when she was injured. It appeared that she remembered the events which occurred when she was injured and was able to communicate her recollection. The defendants' counsel cross-examined her at some length. The examination was directed to testing her memory as to past events and as to whether she was testifying as to what she had been told. Her version was not shaken to any appreciable extent.

The defendants complain that there should have been a preliminary examination by the judge before Karen was permitted to testify. Usually when there is a question of the competency of a child to testify, the matter is determined by the judge on a voir dire examination. This is made clear in Commonwealth v. Reagan, 175 Mass. 335, where in an illuminating opinion by Hammond, J., the matter is exhaustively discussed with ample citation of authorities. But strictly speaking the question was really not one of competency. The distinction between competency on the one hand and the requisite knowledge on the other is well illustrated by the following comments in the Model Code of Evidence. "Qualification to be a witness is to be distinguished

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from the possession of knowledge by a witness sufficient to enable him to testify concerning a specified matter." Model Code of Evidence, Rule 101, comment a. "Ordinarily if a witness offers to testify that he has knowledge of a material matter acquired by the exercise of his own senses, it is for the trier of fact, rather than for the judge in his capacity as judge, to determine whether the testimony is to be believed. . . . If the witness proposes to testify that he actually perceived a material matter, he must usually be permitted so to testify unless his story is inherently impossible or so fantastic that no rational person could reasonably believe it. . . . Consequently when a witness offers to testify to a personal experience relevant in itself, the question of the possibility of the truth of his story is rarely raised by an objection to admissibility. It is more generally raised by a request to charge the jury to disregard the story or by a motion for a directed verdict." Model Code of Evidence, Rule 104, comment. To the last sentence there might be added, "or by a motion to strike." The question here is whether Karen, whose competency in general was not challenged, could testify as to events which occurred about five years before. It cannot be said as matter of law that she could not. If it appeared on cross-examination that Karen lacked capacity to remember the events when she was injured, a motion to strike would have been in order. But this course was not pursued. We are of opinion that the judge did not err in permitting Karen to testify.

2. The defendants argue that the judge erred in denying their motion for directed verdicts because the plaintiff failed to prove that she was not "teasing, tormenting or abusing" the dog when she was injured. The plaintiffs' action is based on G. L. c. 140, Section 155, as appearing in St. 1934, c. 320, Section 18, which provides in part: "If 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, unless such damage shall have been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting

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or abusing such dog." The statute imposes strict liability on the owner or keeper of a dog which shall "do any damage to . . . the body or property of any person," and proof that the owner was negligent, or otherwise at fault, or knew that the dog had any dangerous propensities is not essential to recovery. Canavan v. George, 292 Mass. 245, 247. Curran v. Burkhardt, 310 Mass. 466. But the burden was on the plaintiff to prove that she was not "teasing, tormenting or abusing such dog." Sullivan v. Ward, 304 Mass. 614.

The plaintiff introduced evidence sufficient to satisfy this burden because, according to her testimony, all she did was to offer the dog a bone, whereupon he growled and bit her. The jury could infer from this evidence that she was not teasing the dog. See e.g., Koller v. Duggan, 346 Mass. 270, 273.

3. The defendants excepted to a portion of the charge where the judge permitted the jury to consider the child's age in relation to the issue whether the plaintiff was teasing, tormenting or abusing the dog. [Note 2] In this connection the defendants urge that "teasing" must be looked at from the point of view of the dog and that a child's age is therefore irrelevant. We disagree. The fact that the plaintiff's conduct may have induced the defendants' dog to bite her does not necessarily bring her within the exceptions to liability contained in the statute. See Koller v. Duggan, 346 Mass. 270, 272-273. As the Supreme Court of Errors of Connecticut has said in construing a statute almost identical to ours: "In common parlance, the verbs `tease,' `torment' and `abuse' all connote the doing of acts designed to annoy and irritate the person or animal to whom or which the acts are directed. As used in the statute, they carry this connotation. None of them is apt for describing friendly playing

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with a dog. It is common knowledge that ordinarily dogs enjoy play with humans. When a person engages in such play, it is not natural for a dog to resent it or be irritated by it to the extent that the dog will attack. It follows that playing with a dog, as the child plaintiff in this case was doing, is not such conduct as falls within the exceptions to liability contained in the statute." Weingartner v. Bielak, 142 Conn. 516, 519-520. In that case a child two and one-half years old was playing with a dog, the play consisting of throwing a rubber bone for the dog to retrieve; she was injured while attempting to pick up the bone for further play. A finding that the plaintiff was not teasing, tormenting or abusing the dog was upheld. See also Kowal v. Archibald, 148 Conn. 125, 130; Funk v. Bannon, 148 Conn. 557, 560-561; Schilling v. Smith, 78 N. Y. Supp. 586.

It follows that the judge did not err in instructing the jury to consider the age of the child, because age may have been relevant to determine whether the child was capable of teasing, tormenting or abusing the dog.

4. The defendants' exception to the denial of their motion for a new trial requires no discussion. The motion was based for the most part, on the matters discussed above; its denial reveals no abuse of discretion.

Exceptions overruled.