Soucy v. Wysocki

• Decision Date: 31 March 1953
• Citation: 139 Conn. 622,96 A.2d 225
• Court: Connecticut Supreme Court
• Parties: SOUCY v. WYSOCKI. Supreme Court of Errors of Connecticut

Page 225

96 A.2d 225

139 Conn. 622

SOUCY v. WYSOCKI.

Supreme Court of Errors of Connecticut.

March 31, 1953.

James C. Parakilas, Thompsonville, for the appellant (defendant).

Francis P. Pallotti, Hartford, with whom was George A. Silvester, Harford, for the appellee (plaintiff).

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

BALDWIN, Associate Justice.

The plaintiff brought suit to recover damages for the wilful, wanton and unlawful killing of his dog. The defendant denied the killing as alleged and filed a counterclaim seeking damages for injury to his property caused by the dog. The court rendered judgment for the plaintiff on the complaint and the counterlaim, and the defendant has appealed.

The defendant seeks extensive corrections in the finding. His claims are without merit and the finding must stand. The facts may be stated as follows: The defendant had leased his fifty-two-acre farm in the town of Somers to the state, thirty-seven acres to be used as a public ground for hunting and trapping and fifteen acres around the house and the farm buildings to be a game sanctuary. The defendant was engaged in the business of raising pheasants as game birds. Wire-topped pens to confine the birds and fenced ranges for them were located adjacent to the buildings and within the sanctuary area. The game warden had erected signs designating the public hunting ground and the sanctuary area, but there was no fence marking the boundary line between the two.

The plaintiff owned a male English setter, one year and five days old. The dog was not licensed. By regulation of the state board of fisheries and game, the training of hunting dogs is permitted in the field from August 1 in one year to March 31 in the next. The plaintiff had, on two prior occasions, brought the dog to the defendant's farm to train him. On one occasion the dog had caused some confusion among the pheasants. On October 8, 1951, the plaintiff, accompanied by the dog, entered the defendant's property at a point several hundred feet outside of the sanctuary area. A pheasant rose and the plaintiff ordered the dog to 'get it.' In following the pheasant, the dog crossed over into the sanctuary area and came up to one of the pens. The pheasants became excited and some, in the nearby ranges, flew out. When the plaintiff saw the dog enter the sanctuary area, he followed and called him. The defendant took a shotgun from a nearby shed and commenced to stalk the dog. As the dog was returning to the plaintiff in response to the plaintiff's call, and when he was well outside of the sanctuary area, the defendant raised his shotgun and took aim at the dog. The plaintiff pleaded with him not to shoot and offered to pay for any damage that the dog might have caused. Although the defendant heard the plaintiff, he shot and killed the dog. The dog had caused no damage to the defendant's property and no provable loss of pheasants. At the time he was shot, he was not pursuing or worrying the pheasants. Upon these facts, the trial court concluded that the killing of the dog was a wilful, wanton act which was not justified under the provisions of § 3405 of the General Statutes and rendered judgment for the plaintiff.

The defendant claims that the plaintiff cannot recover because his dog was not licensed as required by law. General Statutes, § 3384. Section 3401 provides that '[a]ny person who shall steal [or] unlawfully kill or injure any licensed dog or any dog under the age of six months shall [in addition to being subjected to a fine and imprisonment] be liable to the owner in a civil action.' The plaintiff's dog was not licensed. For this reason, the plaintiff has no cause of action under the statute. See Kolinski v. Klein, 100 Conn. 127, 122 A. 914. The question is whether he can recover at common law. The complaint alleges that the defendant 'wantonly, wilfully and unlawfully shot and killed the plaintiff's valuable English Setter dog, the property of the plaintiff.' No citation of authority is required to demonstrate that ordinarily, at common law, if one injures the property of another wilfully, wantonly or negligently, he is liable in an action for damages. One can recover for injuries negligently inflicted upon his horse. See Fritts v. New York & N. E. R. Co., 63 Conn. 503, 26 A. 347. This was not true of an action for damages for the killing of a dog, because the property interest in a dog was considered to be of a base and inferior kind and so 'entitled to less regard and protection than property in other domestic animals.' Woolf v. Chalker, 31 Conn. 121, 127; Town of Wilton v. Town of Weston, 48 Conn. 325, 336.

In the case of Dickerman v. Consolidated Ry. Co., 79 Conn. 427, 429, 431, 65 A. 289, 290, the statute law relating to dogs was reviewed, and the court held, that 'no person has such property in an unregistered dog over six months old as will enable him to maintain an action for the value of such a dog against one who unintentionally, but negligently, kills it'. The court based this conclusion upon the reasoning that the statutes at that time made it a misdemeanor to keep or harbor an unlicensed dog, required the selectmen to make diligent search for such dogs and to cause those keeping or harboring them to be prosecuted, and further provided that unlicensed dogs might be killed by constables and policemen, who would be entitled to a reward for so doing. The court cites Sentell v. New Orleans & C. R. Co., 166 U. S. 698, 706, 17 S.Ct. 693, 696, 41 L.Ed. 1169, to the effect that a property right in a dog is only a qualified one and that it 'is purely within the discretion of the legislature to say how far dogs shall be recognized as property, and under what restrictions they shall be permitted to roam the streets.' It also noted, 79 Conn. at page 434, 65 A. 289, that it was not necessary to the disposition of the case to decide whether an action would lie for the wilful killing of an unlicensed dog.

In Griffin v. Fancher, 127 Conn. 686, 20 A.2d 95, 134 A.L.R. 701, the plaintiff had brought an action to recover damages for the killing of his dog by the negligent operation of the defendant's automobile. We said, 127 Conn. at page 689, 20 A.2d at page 97, that 'by our common law there is a right of action against one who negligently kills or injures [dogs], at least if they are properly registered.' We pointed out, 127 Conn. at page 690, 20 A.2d 95, that such an action would not fall within the provisions of § 3401 (then Cum.Sup.1939, § 1119e) because the statute applied only to such killings as were wilful or so wanton as to be equivalent thereto. We held, 127 Conn. at page 691, 20 A.2d 95, nevertheless, that the right to such a cause of action was implicit in § 3393 (then Cum.Sup.1935, § 137c), which recognizes fully the right of property in dogs. This statute is of decisive significance in the instant case. It reads: 'All dogs are declared to be personal...