Johnston v. Wilson

• Decision Date: 14 May 1924
• Docket Number: 15408.
• Citation: 123 S.E. 222,32 Ga.App. 348
• Parties: JOHNSTON v. WILSON.
• Court: Georgia Court of Appeals

123 S.E. 222

32 Ga.App. 348

JOHNSTON v. WILSON.

No. 15408.

Court of Appeals of Georgia, First Division

May 14, 1924

Syllabus by the Court.

In a suit to recover the value of a dog, alleged to have been unlawfully killed by the defendant while it was killing his chickens, it was error for the court to instruct the jury, in effect, that the defendant did not have the right to kill, if it was worth more than the chickens.In such a case the relative value of the dog and the chickens is but a circumstance to be considered by the jury in deciding the issue of whether or not the killing was justifiable under the circumstances.

Error from Superior Court, Oconee County; Blanton Fortson, Judge.

Action by J. A. Wilson against E. P. Johnston.Judgment for plaintiff, and defendant brings error.Reversed.

W. K Meadow, of Athens, for plaintiff in error.

F. A Gillen, of Watkinsville, and John B. Gamble, of Athens, for defendant in error.

BROYLES C.J.(after stating the facts as above).

The general grounds of the motion for a new trial are expressly abandoned, and the four special grounds of the motion raise but a single question, to wit, did the court err in charging the jury as follows:

"But the defendant would not have had the right to kill the dog, even though caught in the act of killing chickens if the value of the dog was greater than the probable damage he would have inflicted, then or in the future.In other words, a man has the right to protect his property from the depredations of vicious animals, and, if necessary, to kill the animal, if the value of the property he protects is greater than the value of the dog."

Plaintiff in error insists that this charge was error for the following reasons:

"(a) It was contrary to the principle of law of force in this state that a man has the right to protect his property and especially his domestic fowls and animals which are incapable of protecting themselves, from the depredations of dogs, and, if necessary, to kill the dog, even though the value of the fowls he so protects is not greater than the value of the dog.(b) Said charge was error for the reason that it was an incorrect statement of the law applicable to the main issue in the case, and peculiarly prejudicial to movant in this case, for the reason that it placed upon him the burden of showing that the value of his fowls which he sought to protect was in excess of the value of the dog which he killed in attempting to protect them, a greater burden than the law of this state requires him to carry.(c) It was contrary to the rule of law of force in this state that one may lawfully and without liability kill a dog which is in the act of killing one's chickens.(d) Said

charge was especially harmful to movant for the reason that there was evidence submitted to the jury which would have authorized said jury to have found that the value of the chickens which movant sought to protect was not greater than the value of the dog."Generally speaking, whenever and where-ever the dog has been the subject-matter of litigation, counsel and court have been prone to eulogize at length this familiar animal.And, since both this court and the Supreme Court have already followed this time-honored course (seeVaughn v. Nelson, 5 Ga.App. 105, 62 S.E. 708;andStrong v. Ga. Ry. & Elec. Co.,118 Ga. 515, 45 S.E. 366), we will refrain from any dissertation or elaboration of the many splendid qualities of this humble, but faithful, friend of mankind.However, it does not seem amiss to state, in passing, that the cackling hen and the crowing rooster are far more important to the public weal than is the more conspicuously portrayed canine, for, without these valuable fowls, the great American public would not only be deprived of its favorite breakfast of eggs, but the majority of our people in the rural districts, towns, and cities would be deprived of one of their chief means of combating the high cost of living, and of making their small salaries and small business enterprises carry them and their families through the year.Indeed, since King Cotton, due to the ravages of the boll weevil, has been dethroned in favor of Queen Diversification, the heretofore lowly hen has come into her own, and, together with the cow and the hog, is rapidly blazing the trail towards a far more prosperous era for the long-suffering farmer of the Southland.

The exception to the charge in the instant case presents, for the first time in this state, the question whether or not a man has the legal right to kill a dog that is attacking his chickens when the relative value of the dog is greater than that of the chickens.There is no statute in Georgia changing the common-law rule that the owner of a domestic animal or fowl, which is placed in jeopardy by the attack of a dog, has the right to kill the dog for the protection of his property.One of the earliest English cases applying this principle is that of Wadhurst v. Damme, Cro. Jac. 45, 79 Eng. Reprint, 37, decided by the Court of King's Bench more than 300 years ago, where it was held that the keeper of a warren might, without liability, kill a dog that attacked the conies in the warren.That this is the law of this state is recognized in the case of Miller v. State, 5 Ga.App. 463, 464, 63 S.E. 571.For other decisions adhering to this principle, seeThompson v. State,67 Ala. 106, 42 Am.Rep. 101;Minor v. Coleman,16 Ala. App. 5, 74 So. 841;Johnson v. McConnell,80 Cal. 545, 22 P. 219;Ford v. Glennon,74 Conn. 6, 49 A. 189;State v. Churchill,15 Idaho 645, 98 P. 853, 19 L.R.A. (N. S.) 835, 16 Ann.Cas. 947;Brent v. Kimball,60 Ill. 211, 14 Am.Rep. 35;Dinwiddie v. State,103 Ind. 101, 2 N.E. 290;Marshall v. Blackshire,44 Iowa 475;Farney v. Vanarsdall,139 Ky. 247, 129 S.W. 589;Livermore v. Batchelder,141 Mass. 179, 5 N.E. 275;Chapman v. Decrow,93 Me. 378, 45 A. 295, 74 Am.St.Rep. 357;Bowers v. Horen,93 Mich. 420, 53 N.W. 535, 17 L.R.A. 773, 32 Am.St.Rep. 513;Lale v. Laughlin(Mo. App.)203 S.W. 244;Brown v. Graham,80 Neb. 281, 114 N.W. 153;Moebius v. Williams,84 N. J. Law, 540, 87 A. 73;Gibbons v. Van Alstyne,56 Hun, 639, 29 N.Y.S. 156;Parrott v. Hartsfield,20 N.C. 242, 32 Am.Dec. 673;Job v. Harlan,13 Ohio St. 485;Finnerty v. Lamareaux, 10 Kulp (Pa.) 576;Harris v. Eaton,20 R.I. 81, 37 A. 308;Brookerson v. State,49 Tex. Cr. R. 421, 93 S.W. 725;Miller v. Spaulding,41 Wis. 221.

It is true that in the Georgia case of Miller v. State, supra, Judge Powell, who delivered the OPINION, said, by way of obiter dictum, that:

"Whether the killing of a dog is justifiable or not, as related to a civil case, seems to depend upon whether the killing was done, not necessarily while some act of depredation was in progress, but under such circumstances as that the killing was a fair act of prudence on the part of the person doing the killing, reasonable regard being had to the value of the dog, the value of the property menaced, and the probability of present or future

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