Wiley v. Slater

By the Court, W. F. Allen, J. 1. If there is a disputed question of fact, upon which the case turned in the court below, or in relation to which there was evidence upon both sides, the county court did right to affirm the judgment, whatever may have been the opinion of that court, or may be our opinion as to the correctness of the conclusion of the justice. The county court, or this court, cannot reverse the judgment of a justice because it is against the weight of evidence. (Adsit v. Wilson, 7 How. 64. Kasson v. Mills, 8 id. 377. Bennett v. Scutt, 18 Barb. 347.) But if the judgment was entirely unsupported by evidence, so that it is really against law, the county court should reverse, and if it fails to do so, it is the duty of this court to correct the error and reverse the judgment of both courts. [508] This is the first time I have been called upon to administer the law in the case of a pure dog fight, or a fight in which the dogs, instead of the owners, were the principal actors. I have had occasion to preside upon the thial of actions for assaults and batteries originating in affrays in which the masters of dogs have borne a conspicuous part, and acquitted themselves in a manner which might well have aroused the envy of their canine. dependents. The branch of the law, therefore, applicable to direct conflicts and collisions between dog and dog is entirely new to me, and this case opens up to me an entire newr field of investigation. I am constrained to admit total ignorance of the code duello among dogs, or what constitutes a just cause of offense and justifies a resort to the ultima ratio regjtpi. a resort to arms, or rather to teeth, for redress ; whether jealousy is a just cause of war, or what different degrees and kinds of insult or slight, or what violation of the rules of etiquette entitle the injured or offended beast to insist upon prompt and appropriate satisfaction, I know not, and am glad to know that no nice question upon the conduct of the conflict on the part of the principal actors arises in this case. It is not claimed, upon either side, that the struggle was not in all respects dog-like and fair. Indeed I was not before aware that it was claimed that any law, human or divine, moral or ceremonial, common or statute, undertook to regulate and control these matters, but supposed that this was one of the few privileges which this class of animals still retained in the domesticated state; that it was one of their reserved rights, not surrendered when they entered into and became a part of the domestic institution, to settle and avenge, in their own way, all individual wrongs and insults, without regard to what Blackstone or any other jurist might write, speak or think of the “rights of persons” or “rights of things.” I have been a firm believer with the poet in the instructive if not semi-divine right of dogs to fight; and with him would say,. “Tet dogs delight to bark and bite, For God hath made them so; let bears and lions growl and fight, For ’tis their nature to.” [509] It is possible, that had the owners of both dogs been present the belligerents would have been changed, and the familiar questions growing out of son assault desmene and mollitcr manas imposuit would have been presented, but no such questions are made here. The defense is not rested upon the principle of self-defense, or defense of the possession of the master of the victorious dog. ^ Had this defense been interposed, a serious and novel question would have arisen, as to the liability of the offending dog for excess of force, and whether he would be held to the same rules which are applied to human beings in like cases offending; whether he would be held strictly to the proof of the necessity and reasonableness of all the force exerted, under the plea that in defense3 of his carcase or the premises committed to his watch and care, “he did necessarily a little bite, scratch, wound, tear, devour and kill the plaintiff’s dog, doing no unnecessary damage to the body or hide of the said dog.” Addressing myself to the question really made in the case, then, the first difficulty I meet with is the want of proof of ownership by the defendant of the offending dog. The plaintiff made a prima facie case, by proving an apparent possession of the dog, but the appearances were entirely explained by the witness Nowell, who testifies that the dog was not owned by the defendant, nor kept nor harbored by him, but was really a trespasser on the premises, being kept at the shop adjoining. Upon the question of ownership there is really no conflict of testimony. 2. Whatever may have been the character and habits of the dog, there is no evidence that he was the aggressor, or in the wrong, in this particular fight. The plaintiff’s dog may have provoked the quarrel and have caused the fight; and if so, the owner of the victor dog, whoever he may be, cannot be made responsible for the consequences. 3. There is no evidence that the dog alleged to belong to the defendant was a dangerous animal, or one unfit to be kept. The cases cited, in which dogs have attacked human beings,r [510] ^ although trespassers, and the owners have been held liable, are' not applicable. It is one thing for a dog to be dangerous to .-human life, and quite another to be unwilling to have strange dogs upon the master’s premises. To attack and drive oft" dogs thus suffered to go at large, to the annoyance if not to the detriment and danger of the public, would be a virtue, and that is all that can be claimed, upon the. evidence,.was done in this case. Owners of valuable dogs should take care of them proportioned to their value, and keep them within their own precincts or under their own eye. It is very proper to invest dogs with some discretion while upon their master’s premises, in regard to other dogs, while it' is palpably wrong to allow a man to keep a dog, who may or will, under any circumstances, of his own volition, attack a human being. If owners of dogs, whether valuable or not, suffer them to visit others of their species, particularly if they go uninvited, they must be content to have them put up with dog fare, and that their reception and treatment shall be hospitable or inhospitable, according to the nature or the particular mood and temper at the time, of the dog visited. The courtesies and hospitalities of dog life cannot well be regulated by the judicial tribunals of the land. 4. The evidence is slight that the dog died in consequence of this fight. 1 should infer, from the evidence, that he continued his annoying visitations until some one who did not own a white dog with black spots on his head, made use of a shot gun or “ Sharpe’s rifle,” or some other substitute, to abate the nuisance. But as this question is left in doubt by the evidence, the judgment of the justice is conclusive as to the cause of death. I can, however, see no just grounds for the judgment. It can only be supported upon the broad ground that when two dogs fight and one is killed, the owner can have satisfaction for his loss from the owner of the victorious dog; and I know of no such rule. (¡The owner of the dead dog would, I think, be very clearly entitled to the skin, although some, less liberal, "would be disposed to award it as a trophy to the victor, and this rule would ordinarily be a full equivalent for the loss; and with that, [511] unless the evidence differ materially from that in this case, he should be content. [Oswego General Term, July 8, 1856. The judgment of the county court, and of the justice, reversed. Pratt, Bacon and W. F. Allen, Justices.]