Anderson v. Smith

• Decision Date: 30 June 1880
• Citation: 7 Bradw. 354,7 Ill.App. 354
• Parties: AARON ANDERSONv.WILLARD M. SMITH.
• Court: United States Appellate Court of Illinois

7 Ill.App. 354

7 Bradw. 354

AARON ANDERSON

v.WILLARD M. SMITH.

Appellate Court of Illinois, Second District.

June Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of LaSalle county; the Hon. JOSIAH MCROBERTS, Judge, presiding. Opinion filed Dec. 4, 1880.

This was an action of trespass for killing dogs, brought by appellee against the appellant before a justice of the peace, and appealed to circuit court where, upon a trial before the court and jury, a verdict and judgment for $10, were rendered against the appellant, and he brings the record to this court, and assigns for error that the court below misdirected the jury as to the law applicable to the case.

The plaintiff below introduced testimony tending to show that in August 1878, he and the defendant were residents of the city of Mendota, and that at that time, he was the owner of an imported red Irish setter bitch named “Bridget,” and three pups from her, sired by an imported red Irish setter dog named “Rufus” of Detroit, Michigan. That on the 9th day of August, two of the pups escaped from their kennel where they had been confined with their mother. That being informed that defendant had killed them, he asked the defendant about it, and was told by the defendant that he had shot them, because he was afraid the pups would kill his chickens. That the pups were worth $50 each, and the mother worth $200. That he paid $25 for the use of the thoroughbred “Rufus,” and that the expense of sending the slut to the domicile of “Rufus” was $9, making a total cost for the breeding of the pups of $34.

The defendant gave evidence tending to show that in August 1878, he was engaged in raising thoroughbred chickens, known as the Plymouth Rock breed, and on the morning of said 9th of August he heard a disturbance among his chickens on his own premises, and on looking out saw a large dog with one of the hens in his mouth, in the act of jumping over the fence and the two pups in question in the yard; that he called out to them when the large dog sprang over the fence, and dropped the hen upon the outside in the street; that he took his revolver and ran out doors, and that the pups had in the meantime got through the fence and had hold of the hen worrying her when he shot them, and that the chicken was badly torn and bitten. That he had during the season lost thirty-six chickens, he believed by dogs, as he had seen dogs similar in appearance to these on his premises, but could not be sure they were the same dogs; nor that, in fact, the chickens lost before that time were killed by dogs.

The court below gave the following instructions to the jury, numbered 5 and 6, respectively, on behalf of the plaintiff:

“The court below further instructs the jury that dogs are recognized as personal property by the law of this state and that if they believe from the evidence that the defendant shot and killed the puppies of the plaintiff, they should find for the plaintiff and assess the damages at what they find from the evidence, said puppies were reasonably worth at the time they were so killed. And the fact if proven, that the puppies at the time they were so killed, were trespassing upon the premises of the defendant would be no justification whatever to the defendant, and that he would have no more right to kill said puppies, than he would have to kill a breachy horse or cow, belonging to his neighbor and found trespassing upon his premises.

The court further instructs the jury that in such cases as the worrying or killing of domestic animals by dogs, the killing of the dog is only warranted where there is no other possible way to protect the stock from the ravages of the dogs, and the proper remedy in all such cases is a suit for damages against the owner of the dog or dogs, except only in the case of sheep-killing, in which case the law allows the killing of the dog in addition to the suit for damages.”

To which the defendant took his exceptions. As the other instructions for plaintiff announce in substance the same rule as the fifth, it is not necessary to set them out at length

MESSRS. RICHOLSON & SNOW and Mr. E. S. BROWNE, for appellant; that dogs have always been esteemed base property and entitled to less consideration than property in other domestic animals cited Woolf v. Chalker, 31 Conn. 121; Findlay v. Bear, 8 S. &. R. 571; 4 Black, Com. 235; King v. Kline, 6 Pa. St. 320.

It is only sufficient to show an apparent danger: Campbell v. The People, 16 Ill. 17.

The owner of domestic animals is justified in killing a dog found worrying them: Marshall v. Blackshire, 44 Iowa, 475; Leonard v. Wilkins, 9 Johns. 232; 1 Hilliard on Torts, 140; Brill v. Flagler, 23 Wend. 354; Putnam v. Payne, 13 Johns. 312; King v. Kline, 6 Pa. St. 318; Protheroe v. Mathews, 5 C. & P. 581; Aldrich v. Wright, 53 N. H. 398; Barrington v. Turner, 3 Lev. 25.

Mr. L. W. BREWER, for appellee; that to justify the killing, it must be shown to have been necessary to prevent destruction to the animals attacked, cited Jansen v. Brown, 1 Campb. N. P. 41; Wright v. Ramscot, 1 Saund. 84; Hinckly v. Emerson, 4 Cow. 351; Brill v. Flagler, 23 Wend. 354.

Instructions containing mere abstract legal propositions may be refused: Chapman v. Cowrey, 50 Ill. 512; Parker v. Fergus, 52 Ill. 419.

Where it is apparent a new trial would only produce the same result, it should be refused: McConnell v. Kibbe, 33 Ill. 176; Pahlman v. King, 49 Ill. 266; Rankin v. Taylor, 49 Ill. 451.

PILLSBURY, J.

This case, so far as the amount in controversy is concerned, is very insignificant; but considered as involving the questions of the right to defend animate property against the attacks of other animals, and the extent to which a person may lawfully go in such defense, it becomes one of considerable interest and importance.

It is quite evident from the instructions given for plaintiff below, and particularly the fifth and sixth, that the court below intended to inform the jury that the law in this State is, that a party could not lawfully take the life of the dogs in question in defense of his poultry under any circumstances, as the party had an action for his damages, and the law did not allow any one to go to the extent of killing dogs except in the one case of killing sheep by them. Do these instructions state the law as at present existing in this State?

The law from the earliest times has recognized the right of a man to defend his property against the unlawful acts of man or beast, the question in the adjudicated cases not being whether such right of defense existed, but whether it was properly exercised in the given case. This right of defending property from unjustifiable seizures, attacks or destruction, is inseparably connected with and necessarily attaches to, and springs from the natural right of acquiring, holding and enjoying property.

This right exists independently of any provisions of positive law, either constitutional or statutory, and an examination of such provisions as well as the rules of the common law, will show that the right of such defense has ever been recognized as existing, and that the object of all such enactments and the establishing of all such rules has been to confine such defense to what has been deemed by legislatures and judges a reasonable necessity for its exercise in a given case. It is a rule of the common law, affirmed by Sec. 148 of our Criminal Code, that if a person by violence or surprise attempt to commit a felony upon the person, habitation or property of another, the latter may repel force by force, and if in the conflict he happen to kill the offender, the homicide is justifiable. 2 Arch. Cr. Pr. 225.

The law limits this extreme remedy to cases of threatened felony, because it places such a transcendent value upon human life that it conclusively presumes that it is not reasonable to take the life of a human being when the threatened injury, if consummated, would be but a mere trespass or misdemeanor. In such cases the act ceases to be a defense and becomes aggression. At the same time, while forbidding the shedding of human blood in defense of person or property, where no felony is intended, it does not deprive a party of the right to make such reasonable defense as the necessities of the particular case may require. A party having the right to defend his person and property, his justification must, in the very nature of things, depend upon the fact whether, in the given case, he has exercised that right in a reasonable or an unreasonable manner, taking into consideration all the circumstances of the case surrounding the transaction, and in this regard every case must be determined from its own circumstances, for it is impossible to establish an iron rule of law that will fully meet the exigencies of every case that may possibly arise.

The most that can properly be said as a rule of law is, that there must be an apparent necessity for the defense, honestly believed to be real, and then the acts of defense must in themselves be reasonable. Acts beyond reason are excessive. The consequences of the proposed act to the aggressor should be considered in connection with the consequences of non-action to the party defending, whether the defense be made in favor of person or property; and in case of defense of domestic animals from the attacks of other animals, the relative value of the animals may be a proper circumstance for the jury to consider in arriving at a conclusion whether the defense was a reasonable one under the circumstances. Cooley on Torts, § 346.

If a man should find his neighbor's cat in his poultry yard killing his chickens, it might be reasonable...