(Official.)
Exceptions from supreme judicial court, Knox county.
Action by Sanford A. Chapman against Charles H. Decrow. This was an action of trespass to recover the value of a dog killed by the defendant, and belonging to the plaintiff. The jury found for the plaintiff. Defendant excepts. Overruled.
The defendant, in justification for killing the dog, claimed that the dog was trespassing on his premises, and was then, or had been immediately before the shooting, engaged with two other dogs in chasing and worrying his domesticated animals, viz. tame rabbits, and that the dog was at the time outside of the inclosure or immediate care of his owner.
The dog was killed on the 24th day of April, 1897, and, as appeared, had not been registered or licensed for that year as provided by law, although he had been licensed for the preceding year, and was then wearing a collar.
The plaintiff was allowed to state what was the fair market value of the dog at the time, which was objected to by the defendant on the ground that, unless the plaintiff could show that the dog was licensed, and that he had a right to keep him according to law, he had no market value.
The Court: "I don't think that element comes in here. I shall rule against that."
When the plaintiff rested his case, counsel for defendant moved a nonsuit on the ground that an unlicensed dog, outside of the owner's premises, cannot have a property value; citing chapter 287 of the Public Laws of 1893.
The Court: "For the purposes of this trial, I make the ruling that a dog is property." To this ruling the defendant took an exception.
The presiding justice, in part, instructed the jury as follows: "The defense takes the position that in this case there was no property in this dog to his owner; that he was a nuisance; that any person could kill and slay him because he was not licensed and registered according to the statute of this state. I rule against that proposition."
Upon the question of justification, the defendant requested the presiding judge to instruct the jury "that if the jury find that at the time of the shooting of the dog he had killed or wounded the defendant's domesticated animals on the defendant's premises, and was again there apparently for the purpose of destroying others, the defendant would not be liable for killing the dog, but would be justified in so doing, even though the dog was not at the time in the act of destroying or worrying the animals aforesaid," which requested instruction was not given, except as it may appear in the charge. In respect to such justification the presiding judge instructed the jury as follows:
"It is when he is found in the act. It is not for punishment to the dog. Therefore it is not for an act which he has heretofore done. If he had killed ever so many rabbits for the defendant hours before,—on the day before,—be had no right to touch the dog." "It is when he is found in the act." "Bear in mind, it is while the dog is found in the act What is the act? Well, my estimation is, the worrying and the shooting must be substantially at the same time." To which instructions and refusal to instruct, the defendant had exceptions.
Charge to the jury:
"Gentlemen of the Jury: This, action is to recover damages for the loss of a dog by shooting. That the dog was shot, no question is made. I don't know as any question is really made that the defendant shot the dog, or ordered him to be shot, so as to be responsible therefor, if there is any responsibility on any one. If his hired man or agent shot the dog by his direction or order, or by his assent, then he would be liable; and so would the agent be. If it be proved or admitted that the responsibility for shooting the dog attaches to the defendant, and that the dog was at the time even on the premises of the defendant, but doing no injury, nor worrying his domesticated rabbits, he would be liable to pay the value of the dog, in this case, unless there be some other justification for it.
"Now, in the first place, the defendant takes the position that there is no property value in a domesticated dog. I do not concur in that proposition. I rule against it. A dog has value in this state, by our laws, in most respects, the same as any other property; and no man has a right to kill another's dog unless the dog is violating a statutory provision. The defense takes the position that in this case there was no property in this dog to his owner, that he was a nuisance; that any person could kill and slay him, because he was not licensed and registered according to the statute in this state. I rule against that proposition. I think the question of license or no license, registration or no registration, is between the owner of the dog and the state,—a question of finance, affecting only the owner of the dog and the state,—and the want of registration does not authorize the killing of the dog.
"I make these rulings as matters of law. If I am wrong on either of them, the case can be taken to and settled in the law court above; and, if I am in error, that error can be rectified, and the case sent back to be tried on the true, admissible grounds, if I have misstated them.
"But the defense does not stop here. There is a very severe statute towards the owner of dogs doing mischief, which embodies one expression or description of the common law of the state, which reads as I will read to you, and which has been stated to you in different forms: Towns may pass by-laws to regulate the going at large of dogs therein.' Towns may regulate the going at large of dogs by by-laws. There are none here that have been called to our attention.
"'When a dog does damage to a person or his property, his owner or keeper, and also the parent, guardian, master, or mistress of any minor or servant who owns or keeps such dog, forfeits to the person injured double the amount of the damage done, to be recovered in an action of trespass.'
"You see there is a remedy against the owner of a dog for any damage done by the dog to a person or his property, and the remedy is severe. But that is not this case. It is not a case between the owner of property and the owner of a dog for injury done by the dog, but by the owner of a dog for the unjustifiable shooting of his dog.
"'Any person may lawfully kill a dog that suddenly assaults him or another person when peaceably walking or riding.' And here comes a portion applicable here: 'May lawfully kill a dog who is found worrying, wounding, or killing any domestic animal outside of the inclosure or immediate care of his owner.'
"So the defense here sets up its justification on this statute, namely, as they contend, that this dog was found, at the time he was killed, worrying the domesticated rabbits of the defendant, or of the person who killed the dog, or person whose agent or servant killed him. Now, if that be made out, it is a perfect justification by this defendant, if the fact is ascertained by the jury that, when he killed the dog, the dog was found worrying his domesticated rabbits. It is not alleged the dog killed any at that time, but that he was endeavoring to kill them,—that he was worrying them; and, as severe as it may
seem, an owner of domesticated rabbits, catching the dog ('finding him,' to use the words of the statute, in the act of worrying the rabbits himself, as the circumstances would be here, if at all), had a perfect right to shoot him on the spot. That is the defense on the facts in this case; the other defense being upon legal propositions, more strictly.
"It is when the dog is found in the act it is not for punishment to the dog. Therefore it is not for an act which he has heretofore done. If he had killed ever so many rabbits of the defendant hours before, days before, on the day before, the defendant had no right to touch the dog. His remedy would be in another form for the damages done by the dog. The object of the statute is for the prevention of injury to property, and he has a right to shoot the dog when found worrying his domestic animals, so as to prevent injury and killing of these animals.
"Now, gentlemen, it may be a very nice question to know when the worrying of animals begins and when it ends,—to know when a dog had worried them and had ceased to worry them, or whether he continues to worry them,—and I think it is a question of fact for the jury to decide; but I can give a general illustration, a general statement or proposition which may touch somewhere nearly the different contentions of the parties,—the contention of the plaintiff and the contention of the defendant. Bear in mind, it is while the dog is found in the act. What is the act? Well, my estimation is, the worrying and shooting must be at, substantially, the same time, because, as I have already intimated, for past worrying there is no right of shooting. For present worrying there is a right, and I can conceive of eases where it would be close and difficult to decide. But the facts in this case are not for me, but for you, to determine upon the evidence.
"Now, if the dog had been worrying the defendant's rabbits, but had ceased his chase, and had retreated from the immediate premises where the worrying was done, and had gone so far off on his retreat that it should be reasonably apparent to the owner of the rabbits that he had ceased his chase and gone away,—that the work had been done, and was not to be continued,—I think he had no justification for shooting the dog. As a legal proposition, that would not be during the act, but after the act. But if the black dog (the one in question, the one shot) had been, either alone or in consort with the other dogs, worrying the defendant's rabbits, and had...
