Beasley v. Byrum

• Decision Date: 10 September 1913
• Parties: BEASLEY et al. v. BYRUM.
• Court: North Carolina Supreme Court

79 S.E. 270

(163 N. C. 3)

BEASLEY et al.

v.BYRUM.

Supreme Court of North Carolina.

Sept. 10, 1913.

Appeal from Superior Court, Chowan County; Long, Judge.

Action for trespass by V. Beasley and others against O. C. Byrum. From a judgment in favor of defendant, plaintiffs appeal. Reversed and remanded.

The issues submitted and the answers of the jury thereto were as follows:

"(1) Did defendant, Byrum, wrongfully and unlawfully enter on the premises of the plaintiff and trespass as alleged in complaint? Answer: No.

"(2) What damages, if any, is plaintiff entitled to recover on account of said alleged trespass? Answer: —."

The plaintiffs appealed.

E. F. Aydlett, of Elizabeth City, and Bond & Bond, of Edenton, for appellants.

Pruden & Pruden, of Edenton, S. Brown Shepherd, of Raleigh, and W. S. Privott, of Edenton, for appellee.

BROWN, J. The plaintiffs requested the court to charge the jury that if the evidence is believed to answer the first issue, "Yes." To the refusal to so charge plaintiffs excepted, and duly assigned error. We think that upon the evidence as presented the prayer should have been given. The action is brought to recover damages for a forcible and high-handed invasion of plaintiffs' home. The evidence, if believed, establishes a forcible trespass, an indictable offense.

The defendant entered upon plaintiffs' premises armed with a shotgun, and shot and killed the plaintiffs' dog when chained to the piazza, and in the wife's presence and against her protest. She offered evidence tending to prove that she was old, afflicted with heart disease, and that the alarm and shock caused by defendant's conduct had caused her great suffering. There is no evi-dence in the record that the dog was a mad dog, or had been bitten by one within the purview of section 3305 of Revisal, and there is no evidence that his immediate destruction was necessary. 2 Cyc. 416 If such was the case, the owner could be compelled to destroy the dog, or subject himself to the possibility of fine and imprisonment, and under such conditions the dog could be destroyed by order of the justice issuing the warrant under said section. The dog at the time was safely chained up, and for the defendant to enter the home of plaintiffs with a shotgun and kill the dog almost at the wife's feet is not only a trespass, but well calculated to bring on very serious consequences. Perry v. Phipps, 32 N. C. 259, 51 Am. Dec. 387; Wallace v. Douglas, 32 N. C. 79.

New trial.