Johnston v. Wilson

• Decision Date: 14 May 1924
• Docket Number: (No. 15408.)
• Citation: 32 Ga.App. 348,123 S.E. 222
• Parties: JOHNSTON. v. WILSON.
• Court: Georgia Court of Appeals

32 Ga.App. 348

123 S.E. 222

JOHNSTON.

v.WILSON.

(No. 15408.)

Court of Appeals of Georgia, Division No. 1.

May 14, 1924.

(Syllabus by the Court.)

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.

J. A. Wilson brought suit against E. P. Johnston to recover $150, the alleged value of a bird dog, which the petitioner alleged was shot and killed by the defendant willfully and without justification, at a time when the dog was doing neither the defend; ant nor his property any damage that would have authorized the killing of such a valuable animal.The defendant, answering, admitted the killing of the dog, but denied that he did so willfully and without justification, and alleged that immediately before he shot the dog it had killed several of his chickens, and that at the time of the shooting it was then attempting to kill other chickens belonging to him.He pleaded, also, by way of set-off, that this dog had from time to time killed 4S of his chickens, alleged to be worth $1 each, and he prayed for a judgment against the plaintiff for the sum of $48.Upon the trial of the case, the plaintiff testified, among other things, that he was the owner of a number of dogs which he kept at his home, usually in an inclosure in the back yard, but that on Sunday morning (the day the dog was killed) one of his dogs, a Llewellyn setter, given to him by Ty Cobb, and worth $150, followed his wife to the school-house, and in returning home it went across the defendant's yard and was shot and killed by the latter.The defendant testified that on one occasion, prior to the time he killed the dog, he"went out to feed the chicks, and found several killed, seven in all, some of them badly mutilated"; that on another occasion "we found chicks scattered all over the yard, fresh killed, and some of them warm; we gathered them up, 38 of them; we found tracks of the dog this time further out in the yard, where the ground was soft" and that on the day he killed the dog he"got the gun and stepped out in the back yard, to where I could see the dog, and there was a mangled chicken between his feet, and when he jumped and got another one, I shot him."He further testified:

"These chickens of mine that were killed were white Leghorns, and would have cost me $1 each to have bought them in the open market that size."

The jury returned a verdict in favor of the plaintiff for $2.The defendant made a motion for a new trial, which was overruled, and he excepted.

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 whereever 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 South. 841;Johnson v. McConnell, 80 Cal. 545, 22 Pac. 219;Ford v. Glennon, 74 Conn. 6, 49 Atl. 189;State v. Churchill, 15 Idaho, 645, 98 Pac. 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 Atl. 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(...