Brown v. Kendall

“The Dog-Fight Case”

Supreme Judicial Court of Massachusetts, 1850

60 Mass. (6 Cush.) 292.

CJ Shaw delivered the opinion


  • Two dogs owned by plaintiff and defendant were fighting.
  • Defendant (Kendall) tried to separate them by beating them with a stick.
  • In doing so, he involuntarily struck and injured plaintiff (Brown), who was standing behind him

Procedural History:

  • Action of trespass for assault and battery against Kendall
  • Trial trail judge instructed the jury that if beating the dogs was a required duty, the defendant had to exercise ordinary care, but if the beating of the dogs was only a permissible act, the defendant had to exercise extraordinary care to avoid liability.       The burden of proof to extraordinary care was on the defendant.
  • The jury returned a verdict for the plaintiff
  • Defendant appealed, disagreed with jury instructions.

New Trial


Whether someone who is using reasonable care and unintentionally causes damages is



The judge’s instructions about the burden of proof resting on the defendant were wrong.

To recover damages, the plaintiff needs to prove that the actions of the defendant were unlawful, careless or negligent, and that the defendant was not exercising ordinary care.


* Liability must be based on legal fault.

* If an injury is unavoidable and the defendant used ordinary care, there is no liability. The burden of proof that the defendant did not use ordinary care or had unlawful intentions rests on the plaintiff.


Since the defendant was engaged in a lawful act, using the proper precautions dictated by the situation (ordinary care), his injury of the plaintiff was an accident or unavoidable and therefore not a cause of action.

Court’s Order:

New Trial 

New Information:

* For the action of trespass, there has to be a direct and forceful injury, and the only thing plaintiff has to prove is the damage.

* In this case, there is the introduction of fault and due care, and it falls on the plaintiff to prove that the defendant was not acting under ordinary care.

* The standard under Weaver: defendant has to show he is “utterly without fault,” in this case, defendant has to prove ordinary care (under the circumstances) or plaintiff has to use lack of it.

* Accident: an action that could not have been avoided by the use of the necessary degree of care required by the situation.