Chapman v. Decrow

Strout, J. Trespass for killing plaintiff’s dog. Defendant claimed that the dog was trespassing on his premises, and was, “then, or had been immediately before the shooting, engaged with two other dogs in chasing and worrying his domesticated animals, to wit, tame rabbits;” and that the killing was therefore justified. The dog had not been licensed for that year, as provided by c. 287 of the laws of 1893, though it had been the previous year. The defendant claimed that because he was not licensed, that there was no property in him, and that anybody had the right to kill him, and therefore the owner had no redress. The first exception is to the ruling of the presiding justice, “that a dog is property,” and to the instruction “the defense takes the position that in this case there was no property in this dog to his owner, that he was a nuisance; that any person could kill and slay him because he was not licensed and registered according to the statute of this state. I rule against that proposition,” [388] By the common law, a dog is property, for an injury to which an action will lie. Wright v. Ramscot, 1 Saunders, 84; Athill v. Corbet, Cro. Jac. 463. But larceny could not be committed of a dog. But by statute 7 and 8 Geo. 4, it is made a misdemeanor to steal one. In State v. McDuffie, 34 N. H. 526, it is said, “dogs are domesticated or tame animals, and as much the subject of property or ownership as horses, cattle or sheep. Trespass or trover will lie for them.” In State v. Harriman, 75 Maine, 562, where it was held by a divided court that a dog was not a domestic animal within the statute making it a criminal offense to kill or wound a domestic animal, it was said, “ the dog is recognized as property so far as to afford a civil remedy for an injury, but seldom, if ever, any other.” If, as claimed by defendant, the fact that this dog was not licensed for that year, rendered him a nuisance, which is not admitted, he would be a public nuisance, and no individual was authorized to abate it, unless he was suffering damages therefrom peculiar to himself and distinct from the injury to the public. Corthell v. Holmes, 87 Maine, 27. But the defendant claims that the statute of 1893 has by implication outlawed all dogs not registered as therein provided. That act provides for an annual registration of dogs before the first day of April, and imposes a penalty upon the owner if he fails to so register. Section 10 requires the selectmen “ within ten days from the first day of May to issue a warrant” for killing unlicensed and uncollared dogs. No authority to kill them is given under this statute except to a constable acting under such warrant — which cannot issue before the first day of May nor after the lapse of ten days thereafter. The legislature evidently contemplated, notwithstanding the requirement for registration before April 1, that dogs might be registered and licensed at a later date; for in the same section which requires registration before April 1, it is provided that “a person becoming the owner or keeper of a dog after the first day of April, not duly licensed, shall cause it to be registered, etc., as provided above.” [389] It may be that the owner who fails to register his dog before April 1, may be liable to the penalty prescribed, but if he sells the dog at any time after that date, the then owner may register him and protect him against the warrant in the constable’s hand; and as revenue appears to be one object of the act, it would seem that the owner who neglected to register on April 1, might do so later. This dog was shot April 24, before the municipal officers were authorized to issue a warrant. It will be noticed that this act provides only for killing unlicensed dogs, by a constable under a warrant, and impliedly forbids killing by any other person. The postponement to May 1, of the authority to the municipal officers to issue a warrant, indicates an intention to allow the negligent owner opportunity to repair his forgetfulness. But, it is said that section 11, which provides a civil liability for stealing or killing a registered dog, by implication outlaws all that are not registered, and authorizes anybody to steal or kill them. If this provision adds any remedy not known to the common law, it certainly does not take away rights previously existing by it. The defendant justified the killing upon the' ground that the dog was worrying his rabbits. He asked the court to instruct the jury, “that if the jury find that, at the time of the shooting of the dog, he had killed or wounded the defendant’s domesticated animals on the defendant’s premises, and was again there apparently for the purpose of destroying others, the defendant would not be liable for killing the dog, but would be justified in so doing, even though the dog was not at the time in the act of destroying or worrying the animals. This instruction was refused and rightly so. It was too broad. Revised Statutes, c. 30, § 2, provides that “any person may lawfully kill a dog that suddenly assaults him or another person, when peaceably walking or riding, or is found worrying, wounding or killing any domestic animal, outside of the inclosure or immediate care of his owner.” Under this statute it is not enough that the dog may have worried or killed a domestic animal before, nor that there is a belief or apprehension that he intends to do so, to justify [390] the killing, but he must be in the act — or, in the language of the charge in this case, “the worrying and the shooting must be substantially at the same time.” “If he had been worrying the defendant’s rabbits, and had been merely momentarily checked or held at bay by the girls at the door, or the hired man or anybody else, and the dog had not quit the chase but was still intent at a little distance from out his tracks where he had previously begun to worry the animals, and he was still intent upon the act of worrying, either returning or ready to return as soon as the obstructions for getting at the rabbits were removed from him, I think you would be authorized, if you see fit to say that his worrying and killing were co-existent acts, concurrent acts, done at the same time, that they were one transaction.” The defendant has no reason to complain of this instruction. In Morris v. Nugent, 7 Car. & P. 572, it was held that to justify shooting a dog, he must be actually attacking the party at the time. In that case the dog run out and bit the defendant’s garter, and the defendant turned round and raised his gun and the dog ran away, and he shot the dog as he was running away, and it was held he was not justified. So, to justify shooting a dog because he was worrying fowl, and could not otherwise be prevented, the party must show that the dog was in the act of worrying at the time. Janson v. Brown, 1 Camp. 41. See also Wells v. Head, 4 Car. & P. 568. It is not. sufficient that the party had reasonable 'cause to believe that the dog was proceeding to worry the animals, but he should also have reasonable cause to believe that it was necessary to kill the dog to prevent him from killing the animals. So held in Livermore v. Batchelder, 141 Mass. 179. ' The refusal to instruct and the instructions given were in accordance with law, and fully protected defendant’s rights. Exceptions overruled.