Wright v. Clark

The opinion of the court was delivered by Ross, J. On the trial the defendant attempted to justify the killing of the plaintiff’s dog by virtue of s. 3, p. 527, Gen. Sts., which makes it the duty of the owner or keeper of a dog to cause a collar, with his name plainly written thereon, to be worn on the neck of the dog, and then provides : “ And it shall be lawful for any person to kill any dog running at large off the premises of the owner or keeper, not having on such collar ; and the owner or keeper of such dog shall recover no damage for such killing.” The plaintiff’s dog was a hound, trained to hunt foxes, and kept chained except when taken out for that purpose. On the occasion when shot, the plaintiff was out with the dog in pursuit of a fox, and although at the time of the shooting the plaintiff was some distance from the dog, he was still in the chase, and Stone, who had joined in the pursuit in accordance with a previous un [134] derstanding with the plaintiff, was near to and in full view of the dog and the fox as they passed into the woods, where the defendant shot the dog. ■ It is not stated whether the place where the defendant shot the dog was off the plaintiff’s premises, which is a fact necessary to be shown by the defendant, to make out a justification of the killing. As it is incumbent for the excepting party to place upon the record such facts as will affirmatively show error in the ruling of the County Court, the judgment of that court might be affirmed on this ground alone. It is however probably fair to infer from what is stated in the exceptions, that the killing was off the plaintiff’s premises. Hence the question arises, whether the dog was “ running at large ” when killed. If not, the County Court correctly refused to direct a verdict for the defendant, and ruled that the defendant was not justified in shooting the dog, “ if the plaintiff or Stone was pursuing the fox, and so near as to be in view.” What the court added in regard to “ the dog neither doing nor threatening any injury to others,” could not have prejudiced the defendant. The meaning of the phrase, “ running at large,” was before the court on another statute, in Russell v. Cone, 46 Vt. 600. Judge Peck in that case says: “ Running at large is used in the statute in the sense of strolling without restraint or confinement, or wandering, roving, or rambling at will, unrestrained. Perhaps no precise abstract rule under the statute can be laid down, applicable to every case, as to the nature, character, and amount of restraint necessary to be exercised over a domestic animal. * * * But the restraint need not be entirely physical; it may depend much upon the training, habits, and instincts of the animal in the particular case; and the sufficiency of the restraint is to be determined more from its effect upon, and controlling and restraining influence over, the animal, than from the nature or kind.” This is so recent and so full a definition of these words that nothing further need be added. The dog is.the most tractable of animals, and yields most readily to restraint other than physical. The voice and look of his master are often more potent to restrain him than cord or chain. He is often trained so that at his master’s command he will remain by and guard his property for a whole day in the ab [135] sence of liis master, or go out of sight and miles away and gather in his flocks and herds. Different species have special instincts which render them particularly susceptible to training and restraint in certain directions. The trained hound, when pursuing the fox or deer with and at his master’s bidding, is no more “ strolling without restraint,” or “ wandering, roving, or rambling at will,” than a boy while going on an errand at his master’s command. Either, when out of sight and hearing of the master, have it in their power to “ stroll without restraint,” or rove at. will; but neither do, so long as they continuously and rigorously pursue the thing commanded. Hence the fact that the dog when shot was out of sight and hearing of his master, is not determinative of whether he was “ running at large.” If the plaintiff’s testimony gained credit, when shot, the dog was in hot pursuit of the fox in obedience to the command of the plaintiff, with all his instincts urging him thereto, as each bound brought him nearer and nearer the coveted prize. We do not think such a dog, thus running, is, within the meaning of the statute, running at large ; and there was no error in this ruling of the County Court. II. The defendant claimed that the shooting of the dog was accidental, occasioned by attempting to shoot the fox, as he had a right to do. If the kind of accidental shooting shown by the defendant was such as rendered him liable, the ruling of the court that he had no right to shoot at the fox if the dog had brought him under cover, whether correct or erroneous, becomes immaterial. It is only injuries from unavoidable accidents that are not actionable. In the case cited and relied upon by the defendant on this point, Vincent v. Stinehour, 7 Vt. 62, it is held: “Therefore, when a person is doing a voluntary act which he is under no obligation to do, he is held answerable for any injury which may happen to another either by carelessness or accident. On this principle the case of Underwood v. Hewson, 1 Stra. 596, was decided. The act of uncocking the gun was voluntary, not unavoidable ; a greater degree of prudence was therefore required.” The shooting of the fox was voluntary, not unavoidable, and furnishes no [136] excuse to the defendant, if he did not thereby intend to hit and kill the dog. III. We think there was no error in the court’s charge in regard to exemplary damages. The court told the jury they were at liberty to add this class of damages if they found the defendant “ intentionally and wantonly ” — that is, purposely and recklessly, or without proper regard for the rights of the plaintiff — shot the dog. .The law implies malice where a party purposely commits a trespass, especially if he commits the tort with a total disregard of the rights of the owner. IY. There is no analogy between the jurors’ obtaining a dictionary to ascertain the meaning of the language which they use in a special verdict, and the giving them the General Statutes by direction of the court, to hunt out for themselves the law relating to manslaughter. The jurors are to receive the law from the court in criminal cases even. It is the duty and prerogative of the court to explain to the jury the law on any subject brought before them for determination. If the court fail to suitably discharge this duty, it may be error. But the court is under no such duty, uncalled upon, to explain the meaning of ordinary words ; neither is it necessarily ei’ror for the jury to inform themselves of the meaning of such words from the dictionary, when they have occasion to use them in writing special verdicts. It is not apparent that the defendant was prejudiced thereby, and therefore it furnishes no ground for the reversal of the judgment of the County Court on exceptions. For aught that appears the County Court exercised a wise discretion in overruling the defendant’s motion to set aside the vei’dict and for a new trial. This court will not revei'se the judgment of the County Coux-t when denying a motion resting lai’gely in discretion, unless the exceptions render it clear that in its action that court has been governed by erroneous views of the law relating thereto, to the legal prejudice of the excepting party. Judgment affix'med.