Thurston v. Carter

• Decision Date: 23 November 1914
• Citation: 92 A. 295,112 Me. 361
• Parties: THURSTON v. CARTER.
• Court: Maine Supreme Court

92 A. 295

112 Me. 361

THURSTON

v. CARTER.

Supreme Judicial Court of Maine.

Nov. 23, 1914.

Exceptions from Supreme Judicial Court, Knox County, at Law.

Action by Carl W. Thurston against Alonzo A. Carter. Directed verdict for defendant, and plaintiff brings exceptions. Exceptions overruled.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and PHILBROOK, JJ.

L. M. Staples, of Washington, for plaintiff.

Frank B. Miller, of Rockland, for defendant.

BIRD, J. This action of trespass is brought for the recovery of damages for the killing of the fox hound of plaintiff by defendant. The latter, in justification, under Pub. Laws 1909, c. 222, § 17, claimed that he shot and killed the plaintiff's dog while it was chasing and worrying a cat belonging to and upon the land of the defendant. After the introduction of all the evidence, the court ordered a verdict for defendant To this direction, plaintiff filed his bill of exceptions in which it is stipulated that if a cat is a domestic animal, the ruling below is to stand, otherwise judgment is to be entered for plaintiff in the sum of $50.

That portion of section 17, c. 222, Pub. Laws 1909, which defendant invokes is as follows:

"Any person may lawfully kill a dog which * * * is found worrying, wounding, or killing any domestic animal, when said dog is outside of the inclosure or immediate care of its owner or keeper."

The enactment is entirely free from technical words or phrases. It is therefore to be construed according to the common meaning of the language. R. S. c. 1, § 6, subd. 1; State v. Harriman, 75 Me. 567, 46 Am. Rep. 423. "Domestic" has been variously defined by lexicographers, but with substantial uniformity of meaning. "Inhabiting the house, not wild." Johnson's Dictionary. "Belonging to the house or household; domesticated; tame." Standard Diet "Living in or near the habitations of man; domesticated; tame as distinguished from wild; living by habit or special training in association with man." Webster's New Int. Diet. "Relating to or belonging to the home or household, or to household affairs." Cent. Dict. "Pertaining, belonging, or relating to a house." Black's Law Diet. See, also, Kimball v. Water Co., 107 Me. 467, 469, 78 Atl. 865, 32 L. R. A. (N. S.) 805. It is a broad term; Osborn v. Lenox, 2 Allen (Mass.) 207, 209.

The cat is defined as "A domestic animal that catches mice." Johnson's Diet. "A well-known domesticated carnivorous mammal, kept to kill mice and rats and as a house pet." Standard Diet "A carnivorous quadruped (felis domestica) which has long been kept by man in a domestic state, as a pet and for catching rats and mice; * * * [it] is not known in the wild state." Webster's New Int. Diet.

The time of its first domestication is lost in the mists of the dawn of history, but it is apparent that the cat was a domestic animal among the early Egyptians, by whom it came to be regarded as sacred, as evidenced by the device of Cambyses during his invasion of Egypt B. C. 525 or 527, which could scarcely have been feasible if the animal was then wild. From that day to this it has been a dweller in the homes of men. In no other animal has affection for home been more strongly developed, and in none, when absent from home, can the animus revertendi be more surely assumed to exist.

"But the common law has * * * adopted the test laid down by Puffendorf, by referring the question whether the animal be wild or tame to our knowledge of his habits, derived from fact and experience." 2 Kent, § 849.

It is clear, therefore, from the popular meaning of the word "domestic" and from our knowledge of its habits gained from fact and experience that the cat is a domestic animal.

In the Laws of England it is laid down that "the common law follows the civil law in classifying animals in two divisions as follows :

"(1) Domestic or tame (domitæ or mansuetæ naturæ). This class includes cattle, horses, sheep, goats, pigs, poultry, cats, dogs, and all other animals which by habit or training live in association with man. 1 Halsbury, 365."

And following this definition, the same author declares that:

"Domestic animals, like other personal and movable chattels, are the subject of absolute property. The owner can maintain trover for them, and retains his property in them if they stray or are lost." Id.

See, also, Yates v. Higgins, L. R., 1 Q. B. D. 1896, 166; Harper v. Marcks, L. R. 189, 2 Q. B. D. 319, 322, 323.

But it is urged that the cat is not the subject of larceny, and therefore its owner can have but a qualified property therein. Among the ancient Britons it was held to have intrinsic value, and the theft of a cat was punishable by fine. When, however, larceny became punishable capitally, the courts, to mitigate the severity of the law, held that certain animals were not the subject of larceny as not fit for food, or as base, or as kept only for...