Jacquay v. Hartzell

• Decision Date: 26 May 1891
• Docket Number: 161
• Citation: 27 N.E. 1105,1 Ind.App. 500
• Parties: JACQUAY v. HARTZELL
• Court: Indiana Appellate Court

27 N.E. 1105

1 Ind.App. 500

JACQUAY v. HARTZELL

No. 161

Court of Appeals of Indiana

May 26, 1891

From the Allen Circuit Court.

Judgment affirmed, with costs.

W. G Colerick, for appellant.

R. S Robertson, for appellee.

OPINION

CRUMPACKER J.

John R. Hartzell sued Lemuel Jacquay for wilfully and maliciously killing a dog owned by the plaintiff.

The complaint charges that the dog was of a peculiarly valuable breed, and was trained to habits of usefulness, and while he was upon the plaintiff's premises, peaceably and quietly, the defendant enticed him out upon a public highway and there unlawfully and maliciously shot and killed him.

The defendant answered by general denial, and the cause was tried by a jury, and resulted in a verdict for the plaintiff for one hundred and fifty dollars.

The jury answered five interrogatories submitted to them by the court at the request of the defendant, which, with the answers, are as follows:

"1. Was not the dog mentioned in the complaint in the habit of leaving at his will and pleasure the plaintiff's premises and running out on the public highway, and attacking persons walking, riding and driving over and along said highway by barking and jumping at them and their horses, and following them in that manner for quite a distance? Ans. Yes, with exception of attacking.

"2. On many such occasions did not said dog frighten the horses attached to vehicles in which persons were seated, and thereby imperil the lives and limbs of such persons? Ans. Yes, except imperiling lives.

"3. Was not the dog in the habit of doing so for several years before and up to the time it was killed by the defendant? Ans. Yes.

"4. Did not the plaintiff know that the dog was in the habit of doing so, and did he make any effort to confine his dog or prevent it from doing so; if so, what did he do? Ans. Yes; done nothing; did not deem it necessary.

"5. Was there not an open driveway leading from the highway to the premises of the plaintiff, and within one hundred feet of the residence occupied by him during all said time, and was not said dog permitted and allowed by the plaintiff at its will and pleasure to pass through said driveway to said highway and attack persons and horses? Ans. Yes, except attacking."

A motion was made by the defendant for judgment in his favor upon the interrogatories without regard to the general verdict, which was denied, and he excepted.

Afterwards a motion for a new trial was filed and overruled, and judgment was rendered upon the general verdict.

The first alleged error to which our attention is invited by the appellant is the overruling of his motion for judgment upon the interrogatories.

We agree with counsel for appellant in the view that a vicious dog, roaming at large, endangering the safety of person and property, is a nuisance, and may be lawfully killed by any one coming in contact with it; but the special findings of the jury do not appear to give the dog in question any such a character. It is true, he was in the habit of going from his master's premises and barking at travellers and teams passing along the highway, but the jury found that he was not vicious, and did not attack or imperil the safety of any one.

He innocently and harmlessly followed the well-known propensity of his genus, and demonstrated the truth of the adage that "a barking dog seldom bites."

The dog was not one that would kill or maim sheep or other animals. He was not a vagrant, within the definition of the law, nor was he engaged in the commission of damages at the time he was killed. It does not appear that he was even barking at the appellant at the time he shot him, so it can not be claimed that the killing was justified under the dog statute.

One who wilfully and maliciously kills a dog which is not vicious or dangerous in its disposition and habits, and is not engaged in committing damages, is liable to the owner for the fair value of the animal. Dinwiddie v. State, 103 Ind. 101, 2 N.E. 290; Lowell v. Gathright, 97 Ind. 313.

Special findings control the general verdict only where there is an irreconcilable conflict between them upon a material question. There is no such conflict in this case. The appellant was not entitled to judgment upon the interrogatories.

The overruling of the motion for a new trial is the only other error relied upon by appellant. Counsel for appellee contends that this motion was filed too late to raise any question.

The record discloses that the verdict was returned on the twenty-third juridical day of the February term, 1889, of the Allen Circuit Court. On the twenty-ninth day of...