Stine v. McShane

• Citation: 55 N.D. 745,214 N.W. 906
• Decision Date: 23 August 1927
• Docket Number: No. 5373.,5373.
• Parties: STINE v. McSHANE et al.
• Court: United States State Supreme Court of North Dakota

55 N.D. 745

214 N.W. 906

STINE

v.McSHANE et al.

No. 5373.

Supreme Court of North Dakota.

July 13, 1927.

Rehearing Denied Aug. 23, 1927.

Syllabus by the Court.

Under section 2642, C. L. 1913, making “the owner of any dog * * * liable in a civil action for all damages that may accrue to any person by reason of such dog's killing, wounding or chasing any sheep or other domestic animal belonging to such person,” the owner of one of several dogs that kill or injure sheep, while acting in concert, is liable only for the damages done by his own dog.

Said section 2642, Comp. Laws. 1913, does not authorize a joint action against the several owners, where a number of dogs, belonging to different persons, kill sheep jointly.

In the instant case it is claimed that two dogs belonging to the defendants killed certain sheep and turkeys, belonging to the plaintiff, in August and September, 1925. This action was instituted in January, 1926; verdict was returned June 9, 1926; judgment was entered June 29, 1926; an order granting defendant's motion for a new trial was entered September 27, 1926; and an appeal from that order was taken and perfected January 27, 1927. By legislative enactment approved March 3, 1927 (chapter 252) section 2642, supra, was amended so as to make the owner of each dog in a pack liable for all damages done by the pack and so as to authorize joint action and joint judgment against the owners of several dogs, owned by different persons, who participate in killing, wounding or chasing sheep or other domestic animals. For reasons stated in the opinion it is held that the amendatory act is not applicable in this action.

Appeal from District Court, Sioux County; T. H. Pugh, Judge.

Action by R. F. Stine against James McShane and another. Verdict for plaintiff. From an order granting a new trial, plaintiff appeals. Affirmed.

Jacobsen & Murray, of Mott, for appellant.

Morrison & Skaug, of Mobridge, S. D., for respondents.

CHRISTIANSON, J.

Plaintiff brought this action against the defendants, James McShane, Hugh McShane, Owen McShane, and J. J. Dix, to recover damages for the killing of certain sheep and turkeys belonging to plaintiff by two certain dogs alleged to be owned by said defendants. The case was tried to a jury and resulted in a joint verdict in favor of the plaintiff and against the defendants James McShane and J. J. Dix in the sum of $600. Thereafter the defendants moved in the alternative for a judgment notwithstanding the verdict or for a new trial. The motion for judgment notwithstanding the verdict was denied but a new trial was ordered, and plaintiff has appealed from the order granting a new trial.

The complaint alleged that “the defendants owned, kept and controlled two certain dogs,” and that “the dogs so owned, kept and possessed by the defendants wrongfully and willfully came upon the plaintiff's land and there * * * killed 25 head of sheep, owned by plaintiff. * * *” The undisputed evidence, however, is to the effect that there was no joint ownership, custody, or control of the dogs, but that one dog belonged to the defendant James McShane and the other to the defendant J. J. Dix, and that each dog was kept on the farm of his owner, such farms being some distance apart. The evidence adduced on the part of the plaintiff tended to show that during August and September, 1925, the two dogs, acting in concert, killed a number of sheep and turkeys belonging to the plaintiff; that these acts of depredation were committed by the dogs acting together-that is, both dogs would attack each of the various sheep and turkeys that were killed. Upon the trial, defendants, in a proper and timely manner, raised the question that, inasmuch as there was no joint ownership, custody, or control of the dogs, joint action would not lie against the defendants. After the verdict and judgment the question was again pressed by the defendants upon the motion for a new trial. The new trial was ordered on the sole ground that in the circumstances established in this case the plaintiff might not maintain joint action and have a joint judgment against the defendants, and that is the sole question argued on this appeal.

[2] After careful consideration we have reached the conclusion that the trial court was correct in holding that under the undisputed facts in this case a joint action does not lie against the defendants.

[1] At common law the owner of a dog was not liable for any injury caused by it unless the dog...