DISSENTING OPINION
Williamson, C. J.my view the husband should be permitted to recover for consequential damage, i.e., for medical expenses and loss of consortium arising from the alleged injury to his wife by a dog owned and kept by the defendant under the “dog” statute. R. S., c. 100, § 17, as amended.
The differences between the common law and the “dog” statute on liability of owners or keepers come from the elimination of scienter and the addition of fault of the injured person. For application of the common law where defendant is neither owner nor keeper, see Andrews v. Jordan Marsh Co., 283 Mass. 158, 186 N. E. 71. See also Massachusetts General Laws Anno., c. 140, § 155.
In Carroll v. Marcoux, 98 Me. 259, 56 A. 848, in an action under the “dog” statute before the addition of fault, the court said at p. 263:
“At common law the owner or keeper of a dog or a domestic animal was liable for damages done by the animal only in case the animal had a vicious or mischievous disposition known to the owner or keeper. We have a statute, however, which makes the owner or keeper of a dog liable for damage done by it without regard to the disposition of the *240Adog, or the owner or keeper’s knowledge, or his care or want of care.”
The principle in the setting of a vicious horse case is found in Sandy v. Bushey, 124 Me. 320, 321, 128 A. 513.
“In an action for an injury caused by such an animal, the plaintiff has only to allege and prove the keeping, the vicious propensities, and the scienter. Negligence is not the ground of liability, and need not be alleged or proved. This rule of liability of keepers of domestic animals finds its origin in the ancient common law and, except as modified by statute in case of injuries by dogs, is retained as the rule of law in this class of cases in this State. Hussey v. King, 83 Maine, 568; Decker v. Gammon, 44 Maine, 328.”
The “dog” statute obviously changed the elements of liability. I find, however, no change from the statute in the elements of damage assessable under usual common law principles. The double damage provision removed in P. L., 1895, c. 115, does not affect the principle, as I see it. Thus the entire damage, direct to the wife and consequential to the husband, should be assessed when liability for the ifijury under the statute is established.
This is the rule in Massachusetts. McCarthy v. Guild, 53 Mass. 291 (1847), held that a defendant was liable under the statute for loss of a child’s services and expenses of his cure. The court said, at p. 293:
“We think the statute has only declared the general principle, giving double damages to any person injured by a dog, leaving us to recur to the principles of the common law, to ascertain the party legally entitled to recover for any particular injury, that may be the subject of an action. Giving the statute this construction, it provides an adequate remedy for the entire damages that may result from any such injury. The parent or master will recover his appropriate damages, and the minor or servant will, in his own name, recover for the personal suffering. This action may therefore be well sustained by the father for his damage *240Bfor loss of service, or expenses incurred, by reason of the injury to his minor son.”
“A full answer to this contention is found in McCarthy v. Guild, 12 Metc. 291 (construing a predecessor of the present statute, which, while different in some particulars, is essentially similar on the point in issue). There, in permitting recovery for consequential damage by the parent of a child bitten by a dog, it was said: ‘The object of the statute is to protect from injury by dogs. . . But it is quite apparent that a remedy, confined to the case of an injury to the person, and to be enforced only by an action in the name of such person, would fall short of giving complete redress for injuries by dogs. . . [The statute] provides an adequate remedy for the entire damages that may result from any such injuries. The parent. .. will recover his appropriate damages, and the minor . . . will, in his own name, recover for the personal suffering.’ ” Rossi v. Del Duca (Mass.) 181 N. E. (2nd) 591, 594 (1962).
The court, drawing a close analogy with the cases under the “highway defect” statute (R. S., c. 96, § 89 as amended), reaches a contrary conclusion. Under the “highway defect” statute the husband may not recover consequential damage. The wife may in her own action recover for loss of time and necessary and reasonable expenses. Of course, the wife may not recover for the husband’s loss of consortium, which may be an important item of damage resulting from the wife’s injuries. See Britton v. Dube, 154 Me. 819, 324, 147 A. (2nd) 452. This is the position of the court, as I understand the opinion, under the “dog” statute.
There are and have been no significant differences in the “dog” and “highway defect” statutes in Maine and Massachusetts.
In 1849 the Massachusetts Court in Harwood v. City of Lowell, 58 Mass. 310, citing Reed v. Belfast, 20 Me. 246, held under the “highway defect” statute that a husband may not recover for medical and other expenses, or for loss of consortium. The court said, at p. 311:
*240C“This is a several action brought by the husband, to recover consequential damage sustained by him, in the loss of the services of his wife, to which he claims by law to be entitled, during the period of her illness, caused by the accident, and also for the recovery of expenses for medical attendance, and other expense necessarily incurred thereby. The question is, can he recover ?
“It has been too long and too often held, now to be called in question, that the entire remedy for individuals, sustaining loss by defective highways in this commonwealth, depends on statute, and is not given by common law. The same statute law therefore which declares the right, and points out the remedy, must qualify it, and limit and control the extent of it. The question then depends on the construction of the statutes.”
It is of interest, and I think of importance, to note that Chief Justice Shaw and Justices Wilde and Dewey were a majority of the court in both the McCarthy dog case of 1847 and the Harwood highway defect case of 1849. In each case the opinion of the court was unanimous.
I am satisfied that the Massachusetts cases were properly decided on sound and safe reasoning. Hussey v. King, 88 Me. 568, 22 A. 476, does not seem to be inconsistent with this result.
The court, as I read the opinion, requires a husband as here to base his claim for expenses and loss of consortium upon the common law relating to liability of the owner or keeper of a dog. The husband thus must establish scienter, although this element long since was removed by statute from the wife’s action.
Must the husband establish due care on the part of his wife? Fault is a defense to her action, but this as we have seen would not be so at common law.
In the absence of defendant’s liability to the wife, it is inconceivable that the defendant should be liable at common law to the husband. The elements of the husband’s separate *240Daction, as proposed by the court, are not therefore the elements of a common law action. A new element, i.e., the fault of the wife, has been introduced by the very “dog” statute which it is said does not permit recovery.
In this view the husband loses the benefit of elimination of scienter, but retains the burden of establishing no fault by his wife. This result, in my view, is not demanded by the “dog” statute.
I would therefore in this situation permit the husband under the “dog” statute to recover his consequential damages under usual common law principles flowing from the direct injuries to his wife.
Siddall, J., concurs in dissent.