Dunlap v. Snyder

C. L. Allen, J. The first objection raised by the defendant in this case is, that the justice improperly permitted witnesses to swear to their opinions as to the value of tlie dog. The decisions of the courts in this state are somewhat conflicting as to the rule in relation to the opinions of witnesses. In Brill v. Flagler, (23 Wend. 356,) a majority of the court were of opinion that evidence as to the value of a well broke setter dog was barely competent, and that the answers of the witnesses depended in a measure upon their skill and judgment in respect to those animals. Bronson, justice, dissented from this opinion, and thé court remarked, in Harger v. Edmonds, (4 Barb. 256, 259,) that the case of Brill v. Flagler went too far when it professed to sanction the competency of evidence as to the value of á setter dog. In Morehouse v. Mathews, (2 Comst. 514, 517,) Shank-land, J. observed, in relation tó the same case, that the supreme Court thought the 'evidence barely competent to allow a witness [564] who was acquainted with such animals and their value to testify to it. The court do not say that this decision was proper, and the inference rather is, as from the case in 4th Barbour, that the jury are the competent judges of the value of such property, after hearing the evidence as-to the particular qualities and properties of the animal. There is no standard market value for such property, if property it can be called, and men differ in opinion as their fancies ■ dictate, in respect to value. The testimony of one of the witnesses shows this when he swears that he has seen dogs sold for $50. I think the justice erred in admitting the testimony. But suppose the testimony was proper, upon what was it based? Clearly upon the statement of the witnesses as to the good qualities of the dog, as detailed by them in their evidence. The defendant then offered to show that the dog had been in the habit of attacking, and worrying and killing sheep. This evidence was objected to, and overruled by the justice, while he at the same time admitted evidence of his good qualities and character. He erred, undoubtedly, in admitting this evidence; but if it could under any circumstances be deemed proper, I cannot perceive any good reason for rejecting the evidence offered by the defendant to rebut it. It was argued that it was irrelevant and improper as a defense, for it was no justification, unless the dog was killed while chasing and worrying sheep, which was not the offer. Let this be granted—and perhaps under the 15th sec. 1 R. S. 705 it is so—although I do-not concede the proposition, yet the testimony was, in my judgment, competent in mitigation of damages. It is said it was not proper for this purpose, because it was not set up in the answer, and was a surprise upon the plaintiff It was not necessary to set up in the answer matter going to prove the worthlessness of the animal. The plaintiff could not well be taken by surprise. He came into court prepared to prove, as he did, the good qualities and value of his dog. He was allowed to go further, tinder an objection which ought to have been sustained, and prove his general good char- • acter. The evidence offered was rebutting evidence, and went to disprove that character and the value as established by the [565] plaintiff. The objection was a general one, and was sustained. If the evidence, therefore, was proper at all, it should have been admitted under this general objection. It is objected that the offer should have been followed up with proof of the dog’s value. The evidence itself, if received, would have shown him entirely valueless; for it is not to be presumed that a court or jury would have found a dog of any value, who had been accustomed to worry and kill sheep. Such a dog is a nuisance. Any person may kill him, while engaged in the act, and his master is required to kill him, after notice of the fact. I think the justice clearly erred in excluding this evidence. I think, too, the defense that the dog was accustomed to attack and bite mankind, was cleanly established by several witnesses. For these reasons it is unnecessary to consider the other points presented. The judgments of the county court and of the justice must be reversed. Hand, P. J. I think the judgments in the courts below must be reversed. I have some doubt whether it is competent for any witness to give an opinion as to the value of a dog. If that can be done, I think it must first appear that the animal, belongs to a species (if there are such) that have a market value; and the witness must have some acquaintance with the qualities of that class; and also, have some knowledge of their value. Possibly dogs may become merchandise, as well as monkeys and parrots. (Grymes v. Shack, Cro. Jac. 262.) And no doubt, an action by the owner will lie for an injury to them, and indeed it seems it will for an injury to any reclaimed animal. (Wright v. Ramscott, 1 Saund. R. 84, and see note b. Ward v. People, 3 Hill, 395. Goff v. Kilts, 15 Wendell, 550. 2 Kent, 348.) A dog may be highly valued by the owner for various reasons that would have no influence with others, and often without reference to the actual usefulness of the animal, or to any profit desired from him. Most of them are probably not profitable in a pecuniary view, and have really very little pecuniary value; and it is the safer rule to obtain the facts [566] from witnesses, and leave the question of value and damages to the jury. (See Brill v. Flagler, 23 Wend. 356.) The plaintiff was also allowed to inquire of some of his witnesses, and they to give their opinions of the character of the dog—as, “ what is the general character of the dog as to quietude,” &c. Here, too, if the inquiry could be material, the jury should have passed upon the supposed amicable temper and quietude of the dog, upon the evidence of facts. Again, if the testimony upon the general character of the dog was admissible, the defendant had a right to impeach it on the question of value, by showing that he was a sheep killer. As a general rule, witnesses, and parties too, are not supposed to be prepared to meet specific charges of crime not directly in issue; but suppose the rule could be applicable to the canine race, at least on the question of value, any vicious habit or practices of the animal must necessarily affect that value ; and should be proved by showing the facts. The justice unquestionably erred in the admission of evidence ; and that ground is sufficient to reverse his judgment and that of the county court. But I think the testimony showed that the defendant was justified in killing the dog. He insists that he was attacked on the same evening. However that may be, four witnesses testified to six attacks upon pérsons in the road, two of which were upon the defendant; and all of them violent, and apparently very dangefoüs. The plaintiff did not Contradict or impeach this evidence, excépt by the general character of the dog, which could weigh nothing against the fact's ; for if it be once shown that a dog is so ferocious that he will, of his owii disposition, bite mankind in the street, and is at large, he is a nuisance, and may be killed by any one. (Maxwell v. Palmerton, 21 Wend. 407. Putnam v. Payne, 13 John. 312. Hinckley v. Emerson, 4 Cow. 352. Loomis v. Terry, 17 Wend. 500. McKone v. Wood, 5 C. & P. 1. Wadhurst v. Damme, Cro. Jac. 45. Barrington v. Turner, 3 Lev. 28.) After the dangerous propensity is evinced, by clear proof that he has bitten a person or attempted to do so, juriés should not Speculate upon [567] probabilities. Dogs should not be allowed to annoy citizens in the highway, and much less endanger the life or person of a human being. [Saratoga General Term, May 1, 1854. Hand, Cady, C. L. Allen and James, Justices.] Both judgments should be reversed. Cady, J., and James, J., concurred. Judgments reversed.