Alabama Great Southern R. Co. v. Sheffield
| Decision Date | 16 April 1925 |
| Docket Number | 7 Div. 556 |
| Citation | 104 So. 222,213 Ala. 15 |
| Parties | ALABAMA GREAT SOUTHERN R. CO. v. SHEFFIELD. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, St. Clair County; O.A. Steele, Judge.
Action by J.P. Sheffield against the Alabama Great Southern Railroad Company for killing dogs. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.
See also, 211 Ala. 250, 100 So. 125.
Goodhue & Lusk, of Gadsden, for appellant.
Conley Merchant, of Birmingham, for appellee.
The suit is to recover damages for the alleged negligent killing of plaintiff's dogs. The complaint, in separate counts seeks recovery for negligently running trains over two dogs at different times.
After reversal on former appeal (211 Ala. 250, 100 So. 125), the defendant filed several special pleas to which demurrers were sustained.
No. 13 pleads in bar of the action that "said dog had been known to kill or worry sheep or other live stock without being set upon the same." This plea is based upon Code of 1923, § 6072 (2832), which reads:
This statute dates from 1854, but does not appear to have been directly construed by this court.
Some kindred statutes have been considered. In A.G.S.R. Co. v Wedgworth, 208 Ala. 514, 94 So. 549, a similar defense was raised under the dog law of 1919 (Acts 1919, p. 1077). That statute required dogs to be registered, tagged, and muzzled, and made it the duty of certain officers to kill dogs found running at large in violation of the law. The defense went upon the ground that the act outlawed all dogs kept in violation of the law. This court took the view that the statute should not be so construed as to destroy all property right in the dog and warrant its killing by any and all persons. It was further declared the violation of that statute by the owner was no defense to an action for negligent killing, where neither the unlawful conduct of the owner, nor the unlawful status of the dog, bore any relation to the injury complained of.--Citing Ensley Merc. Co. v. Otwell, 142 Ala. 575, 38 So. 839, 4 Ann.Cas. 512, a case of live stock running at large in a stock-law district.
This court has also considered cases involving the killing of a dog while in act of injuring live stock or domestic fowls. These cases involve justification in the protection of one's property. Coleman v. Minor, 17 Ala.App. 103, 82 So. 42; Ex parte Minor, 203 Ala. 481, 83 So. 475, 10 A.L.R. 687; Kershaw v. McKown, 196 Ala. 123, 72 So. 47. In this class of cases the knowledge of the owner of the vicious propensities of the dog may be immaterial.
Another kindred statute makes it a misdemeanor for the owner of a dog known to worry or kill sheep, domestic fowls, or goats, to suffer it to run at large. Code 1923, § 3219 (6236). Here knowledge or notice on the part of the owner is a material inquiry. Coleman v. Minor, supra.
Section 6072 of the Code of 1923, first above quoted, goes beyond any of these statutes, in that it expressly declares "no action shall be maintained against any one for killing such dog". At the time of the passage of this act the dog was considered property in such sense as to support an action for its wrongful killing. Parker v. Mise, 27 Ala. 480, 62 Am.Dec. 776.
This case arose contemporaneously with the passage of the statute before us. It was there said, arguendo:
"It may be allowable to prove, as a justification for killing a dog, that the dog was a nuisance to the community, and was permitted to go at large."
We think this statute, prohibiting the keeping or ownership of such dog, and expressly granting immunity to any person who kills it, so outlaws the dog as a common nuisance as to destroy all property right therein. 3 C.J. p. 157. In such case, the plaintiff can suffer no injury to his property rights by the killing of the dog, whether done negligently or intentionally. The doctrine of relation between the killing and the status of the property announced in Ensley Merc. Co. v. Otwell, 142 Ala. 575, 38 So. 839, 4 Ann.Cas. 512, has no application. The statute is aimed at the class commonly called the "sheep killing" dog, and dogs of like character in killing or worrying other live stock. The penal clause of the statute is directed to the owner who "knowingly" keeps such dog, but the outlawry of the dog is because of its own vicious qualities. "Known to kill," etc., in the first clause of the statute, means known as a fact, not mere repute. On proof of such fact, the owner cannot recover for the killing of the dog under any circumstances.
It was not necessary to aver knowledge on the part of the plaintiff. The demurrer to plea 13 was improperly sustained. Hayes v. Miller, 150 Ala. 621, 43 So. 818, 11 L.R.A. (N.S.) 748, 124 Am.St.Rep. 93.
The defendant interposed pleas of contributory negligence, to which demurrers were sustained. Plea No. 5 may be taken as a fair sample of all. This plea avers:
"That said plaintiff negligently permitted said dog to go on or near to defendant's railroad at a place and at a time and under circumstances whereby he knew that said dog would probably or likely be...
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...such that any value would be based on the dog's market value, which has not been alleged. See, e.g., Alabama Great Southern R. Co. v. Sheffield, 104 So. 222, 224 (Ala. 1925) (discussing, in a case against a railroad for the negligent killing of plaintiff's dogs, "evidence touching the kind ......
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