Throne v. Mead

Moore, J. August 11, 1897, John Barger, at the request of the defendant, shot two dogs, one of which belonged to the plaintiff. Suit was brought by plaintiff against the defendant. From a judgment obtained by him, the defendant has appealed. The record discloses that plaintiff was the owner of a spayed bitch dog, about 4 years old, which, he testified, he kept chiefly for hunting minks and coons. He says he kept her tied up nights, and a good deal of the time in the daytime. He testified he never knew she worried or killed any sheep. It was shown by some of the witnesses for the plaintiff that the dog was frequently away from home, and among flocks of sheep. One of them testified that, previous to the shooting of the dogs, he had seen them chasing sheep belonging to the defendant. He saw the dog which was shot grab a buck belonging to Mr. Jackson, and soon thereafter the sheep was found dead. It [274] was shown on the part of the defense that, shortly before the two dogs were killed, they killed a buck and several lambs belonging to Mr. Jackson, whose farm adjoined the farm of Mr. Mead, and in July they chased the sheep of Mr. Parker, another neighbor, who drove them away. The defendant had a flock of lambs he had weaned, which he kept west of his house. He saw the dog belonging to the plaintiff chasing these lambs the first week in August, and got his gun to shoot her, but she got away before he could do so. Before the dogs were killed, the defendant had been told about their killing the buck and lambs belonging to Mr. Jackson. On the morning the dogs were killed, their owners were not with them. The defendant did not see the dogs until after they were killed, but his attention was called to the fact that they were on his premises, by Mr. Barger; and when he got the gun he knew it was for the purpose of shooting the,dog that had chased his sheep, .and killed the sheep belonging to Jackson. It is claimed by counsel for plaintiff that as the dogs had not done, or threatened to do, any damage to defendant’s sheep on the day when they were shot, he had no right to kill them; citing Bowers v. Horen, 93 Mich. 420 (17 L. R. A. 773, 32 Am. St. Rep. 513). An inspection of the case will show it is not in point. If the defendant had shot the dog when he saw her chasing his lambs the week before, he would have acted strictly within the provisions of the statute (2 Comp. Laws 1897, § 5592). Had Mr. Mead notified the plaintiff in writing of what his dog had done to the lambs in August, it would have been his duty to have had the dog killed within 48 hours, and he would have subjected himself to a penalty for a failure to do so. This would have been equally true if Mr. Jackson or Mr. Parker had given him a like notice of what the dog had done to their sheep. The statute does not regard with much favor a sheep-killing dog. When the owner of sheep sees a pair of sheep-killing dogs in his inclosure, unaccompanied by any person, and has caught one of them, a few days before, chasing his lambs, he is [275] not obliged to wait until they have again begun their cruel work, before he can take effective measures to protect his property. ■ Under the undisputed facts in the case, a verdict should have been directed for defendant. See Hubbard v. Preston, 90 Mich. 221 (15 L. R. A. 249, 30 Am. St. Rep. 426). Judgment is reversed, and no new trial given. The other Justices concurred.