Opinion
No. 34535.
May 26, 1941. Suggestion of Error Overruled July 11, 1941.
1. EVIDENCE.
It is common knowledge that when a dog has acquired habit of sucking eggs there is no available way by which he may be broken of it, and no calculable limit to his appetite in that regard.
2. ANIMALS.
Where plaintiff's dog had for a period of three weeks sucked all the eggs laid by fowls on defendant's premises, and defendant had made reasonable effort without success to drive dog away, to confine dog and to ascertain and notify owner, defendant was entitled to kill dog and was not liable to plaintiff for so doing.
3. ANIMALS.
Where plaintiff's dog had over a three weeks' period sucked all eggs laid by fowls on defendant's premises, the defendant in killing dog as last resort after other means of preventing dog's depredations had failed was not required to kill the animal while dog was in actual commission of the offense.
APPEAL from circuit court of Leflore county, HON. S.F. DAVIS, Judge.
Alfred Stoner and W.H. Montjoy, both of Greenwood, for appellant.
It is a matter of common knowledge that dogs, even more so than human beings, will do again that which they are in the habit of doing. It is a matter of common knowledge that a dog who sucked eggs yesterday will suck eggs today and tomorrow and the next day, and so on. Likewise, a dog that has habitually howled will howl again, or a dog that chases guineas or turkeys will continue to do so.
We submit that Mr. Hull had done all that a reasonable man could be expected to do. Mr. Hull and his servants tried to catch the dog by offering him kindness and bread. Having failed in this, they tried running the dog away. After leaving, he would return in a few minutes. Thereupon, Mr. Hull, whose testimony shows that he was a lover of dogs, had inquiry made for the owner, but without avail. Mr. Hull, as is shown by the evidence, resided more than a mile from the residence of Mr. Scruggs, and about two dozen families resided between the two residences. After all of this destruction and menace and after all of his trying to avoid killing the dog, the plaintiff says, in effect, that Mr. Hull would have been perfectly justified, if he had quit his work and sat on his premises until the dog again chose to howl on engage in additional acts of destruction and depredation. We all know that the dog would certainly do so. Nothing is more generally known than the nature of dogs.
It seems that some of the decisions on the point as to just when a dog may be killed have been misunderstood. There are a few decisions that seem to hold that a dog must be killed "while in the act." These decisions turn on their own peculiar circumstances: For instance, if A should enter B's premises and be then bitten by B's dog, A would not be justified in leaving the premises, returning with his gun and shooting the dog. There we have a past offense. A could easily protect himself from a second bite by notifying B when he expected to re-enter or by taking proper precautions.
Sheep-killing dogs may be killed; dogs destroying deer, fowls, or other animals, where necessary to their preservation; howling dogs on one's premises may be killed, etc. But it is said the dog must be killed at the time and not on account of past damage done by him.
Note, Hamby v. Samson (Iowa), 40 L.R.A. 510; Note, R.R. Co. v. Munger, 49 Am. Dec. 260.
The true rule is thus stated in 67 Am. St. Rep., note, at pages 294, 295 (s.c. 74 N.W. 918): "But one is never justified in going to excessive lengths in the defense of himself or his property from assault or injury. The method of defense adopted must bear a certain relation to the character or seriousness of the threatened injury. The fact that a dog is trespassing does not justify his wanton or malicious destruction." And again: "In any case, the question whether the defendant was justified in killing or injuring the plaintiff's dog should be submitted to the jury, to be decided from a consideration of the peculiar facts and circumstances of the case."
Hodges v. Causey, 77 Miss. 353, 26 So. 945.
Richard Denman and Means Johnston, both of Greenwood, for appellee.
Dogs are so far recognized as property that an owner of a dog may maintain an action for its wrongful injury or killing and the wrongdoer is answerable in damages, and the fact that the dog was running at large in the absence of statutes to the contrary will not bar recovery.
So. R.R. Co. v. Harris, 93 So. 470, 207 Ala. 534; A.C.G. A. Ry. Co. v. Lumpkin, 70 So. 163, 195 Ala. 290; Duff v. L. N.R. Co., 292 S.W. 814, 219 Ky. 238; Browning v. Belue, 116 So. 509; Jones v. I.C.R.R. Co., 75 Miss. 970, 23 So. 358.
To justify the killing of a dog in defense of property the danger must be imminent, the necessity real or apparent, existent at the time, and the kind of property in peril not of trifling value.
3 C.J.S. 1336; O'Leary v. Wangensteen, 221 N.W. 430, 175 Minn. 368; Webb v. Wessell (Tex.), 178 S.W. 696; 3 C.J., page 156, note 89, page 157, notes 1, 2, 5, 6, 90, 91, 92, 93, 96; Breedlove v. Hardy, 110 S.E. 358, 132 Va. 11; Kershaw v. McKown, 72 So. 47, 196 Ala. 123; Coleman v. Minor, 82 So. 42, 17 Ala. App. 102; Ex parte Minor, 83 So. 475, 203 Ala. 481, 10 A.L.R. 687; Birdsong v. Wilkinson, 13 Tenn. App. 276; Ellis v. Oliphant, 141 N.W. 415, 159 Iowa 514; Chapman v. Decrow, 45 A. 295, 93 Me. 378, 74 A.S.R. 357; Ornburn v. Haley (Mo.), 225 S.W. 114, 115; Woolsey v. Haas, 65 Mo. App. 198; Brent v. Kimball, 60 Ill. 211, 14 Am. R. 35; Reed v. Goldneck, 86 S.W. 1104, 112 Mo. App. 310; Uhlein v. Cromack, 109 Mass. 273.
As a general rule it is for the jury to determine in an action for damages for killing a dog, whether the dog was of such vicious nature or evil habit as placed it within the right of any man to kill it, or whether it had been engaged in acts which, by statute, would justify its killing.
3 C.J.S. 1344; Hodges v. Causey, 77 Miss. 353, 26 So. 945.
Counsel for appellant says that Mr. Hull has done all that a reasonable man could be expected to do; that he has certainly been annoyed to the limit of human endurance. The trouble is that the jury did not agree with counsel and has decided by its verdict that at the time appellant killed said dog the danger to his grandchildren was not imminent and that no real or apparent necessity existed therefor; and further said by its verdict that at the time Mr. Hull killed said dog in protection of his property the danger to said property was not imminent and that there was no necessity, real or apparent, existing at the time of the killing of the dog.
A person sued for killing or injuring the dog of another may exonerate himself from liability by showing that his act was necessary to the proper protection of his premises or property from trespass or injury, or of himself or family from annoyance.
67 Am. St. Rep. 294, 295, note.
But one is never justified in going to excessive lengths in defense of himself or his property from assault or injury. The method of defense adopted must bear a certain relation to the character or seriousness of the threatened injury.
Anderson v. Smith, 7 Ill. App. 354.
On April 4, 1940, appellant killed a dog then on his premises, the dog being the property of appellee, as it was afterwards learned. In an action against appellant, the defendant in the trial court, the jury, on what amounted in practical effect to peremptory instructions for plaintiff, returned a verdict in favor of the plaintiff, and the defendant has appealed.
The ownership and the killing are admitted, and in defense appellant plead justification. Plaintiff resided in the City of Greenwood and defendant's home was about a mile away and near the outside of the city limits. About three weeks before the date aforementioned, according to the evidence introduced in behalf of defendant, the dog took up his abode on the premises around defendant's home, and made himself a nuisance by howling at night, chasing the turkeys and guineas owned by the defendant and by demeaning himself so as to frighten the children and their nurses. The evidence on plaintiff's part was to the effect that the dog was not absent from plaintiff's premises in such manner as to be constantly or continuously somewhere else, although it was admitted by plaintiff that the dog was absent at recurrent times and hours.
In this situation we lay aside as unnecessary, but not because unimportant, all the above mentioned complaints as regards the conduct of the dog, and lay aside also the assertion that during all the three weeks the dog was constantly or continuously on the premises of the defendant, because as to complete continuity there is a dispute of fact; and we proceed to a determination of the controversy upon undisputed evidence of facts and circumstances which conclusively disclose that, throughout the period of three weeks aforesaid, the dog sucked all the eggs which were laid by the turkeys and guineas on defendant's premises and that his presence there was of sufficient frequency or continuity, both day and night, that none of the eggs were left until after the dog was killed.
It is a fact of common knowledge that when a dog has once acquired the habit of egg-sucking there is no available way by which he may be broken of it, and that there is no calculable limit to his appetite in the indulgence of the habitual propensity. And generally he has a sufficient degree of intelligence that he will commit the offense, and return to it upon every clear opportunity, in such a stealthy way that he can seldom be caught in the act itself.
When a dog of that character has for three weeks taken up his abode upon the premises of one not his owner, or else from time to time during the course of such a period and from day to day as well as often during the night, has returned to and entered upon the premises of one not his owner, and has destroyed and continued to destroy all the eggs of the fowls kept by the owner of the premises, what shall the victimized owner of the premises do? Nobody will contend that he shall be obliged to forego the privilege to own and keep fowls and to obtain and have the eggs which they lay; nor will it be contended that he is obliged to build extra high fences, so high as to keep out the trespassing dog, even if fences could be so built. The premises and its privileges belong to the owner thereof, not to the dog.
He must then, as the most that could be required of him, take one or the other, and when necessary all, of the three following courses: (1) He must use reasonable efforts to drive the dog away and in such appropriate manner as will probably cause him to stay away; or (2) he must endeavor to catch the dog and confine him to be dealt with in a manner which we do not enter upon because not here before us; or (3) he must make reasonable efforts to ascertain and notify the owner of the dog, so that the latter may have opportunity to take the necessary precautions by which to stop the depredations. It is undisputed in this record that the owner of the premises resorted in a reasonably diligent manner and for a sufficient length of time to each and all of the three foregoing courses of action, but his reasonable efforts in that pursuit resulted, every one of them, in failure.
What else was there reasonably left but to kill the animal? There was nothing else; and we reject the contention, which seems to be the main ground taken by appellee, that admitting all that has been said, the dog could not lawfully be killed except while in the actual commission of the offense. This is a doctrine which applies in many if not most cases, but is not available under facts such as presented by this record. After such a period of habitual depredations as shown in this case, and having taken the alternative steps aforementioned, the owner of the premises is not required to wait and watch with a gun until he can catch the predatory dog in the very act. Such a dog would be far more watchful than would the watcher himself, and the depredation would not occur again until the watcher had given up his post and had gone about some other task, but it would then recur, and how soon would be a mere matter of opportunity.
Reversed and judgment here for appellant.