Hodges v. Causey

Weiteiet.d, J., delivered the opinion of the court. It may be that “property in clogs is of an imperfect or qualified nature,” as held in Sentell v. Railroad Co., 166 U. S., 698 (17 Sup. Ct., 693, 41 L. Ed., 1169); Ward v. State, 48 Ala., 161; Town of Wilton v. Town of Weston, 48 Conn., 325; and City of Carthage v. Rhodes, 101 Mo., 175 (14 S. W., 181, 9 L. R. A., 352). And it is doubtless true that much of the conflict of decision touching this subject is due to the varying statutes of different spates as regards their being the subject of larceny, etc. Put it is very correctly said in the learned note to Hamby v. Samson (Iowa), 67 Am. St. Pep., at page 297, s.c. 74 N. W., 918, that “in the United States there has been a quite noticeable tendency in legislation and judicial decisions to recognize a complete property in dogs.” When the right to kill a trespassing dog is in question, doubtless the difference in nature and instincts between the dog and ordinary domestic animals, as the horse or cow, may properly enter into its solution. Tt is said in the exhaustive note to this same case of Hamby v. Samson (Iowa), 40 L. R. A., at page 510, s.c. 74 N. W., 918, that “it is generally held that a merely trespassing dog cannot be killed,” and the authorities pro and con are cited. In that note, and also in the note to Railroad Co. v. Munger, 49 [357] Am. Dec., at page 260, illustrations are given of the conditions under which it would be lawful to kill a trespassing dog: Sheep-killing dogs may be killed ; dogs destroying deer, fowls, or other animals, where necessary to their preservation; howling clogs on one’s premises may be killed, etc. But it is said the dog must be killed at the time, and not on account of past damage done by him. Id., and authorities. The true rule is thus stated in 67 Am. St. Hep., note, at pages 294, 295, s.c. 74 N. W., 918: “But one is never justified in going to excessive lengths in the defense of himself or his property from assault or injury. The method of defense adopted must bear a certain relation to the character or seriousness of the threatened injury. The fact that a dog is trespassing does not justify his wanton or malicious destruction.” And again: “In any case, the question whether the defendant was justified in killing or injuring the plaintiff’s dog should be submitted to the jury, to be decided from a consideration of the peculiar facts and circumstances of the case.” The court virtually told the jury, in its modifications of plaintiff’s instructions, that, “if they believed defendant had warned plaintiff not to let his dogs run in his field,” defendant was not liable. This was error. IsTotice to keep his dogs out was one fact, but not the only fact, to be considered. Notice of that sort is not conclusive. See authorities collected in paragraph 3, 49 Am. Dec., 259. When it is borne in mind of what great value some dogs are, the reasonableness of the general rule against the right to kill a mere trespassing dog is apparent. See Mullaly v. People, 86 N. Y., 365, and note, supra, 40 L. R. A., s.c. 74 N. W. Here at the time this English deerhound was killed, she was running through the corn rows in November, when the corn was thoroughly matured. She had done at that time no damage to the cotton. The defendant says he killed her to prevent her doing damage by knocking out cotton from the stalks. The jury should not have been told that notice was a perfect defense. All the circumstances in evidence were before them, and the reasonableness of the alleged necessity of [358] killing tbe dog to save property should have been left to them, as a question of fact, under proper instructions as to tbe law. The court also erred in its instruction as to tbe necessity of proving market value. Tbe doctrine supported by reason and the authorities is that you may prove tbe market value if tbe dog has any, and, if not, then his “special or pecuniary value to bis owner, to be ascertained by reference to bis usefulness and services.” Heiligmann v. Rose (Tex. Sup.), 16 S. W., 932 (13 L. R. A., 275). And it is perfectly competent to prove tbe pedigree, characteristics and qualities of tbe dog, and then prove, by witnesses who know these things, their opinions as to the value. Bowers v. Horen (Mich.), 53 N. W., 535 (17 L. R. A., 773). And on both these propositions see, specially, the notes to Hamby v. Samson (Iowa), 67 Am. St. Rep., 292, 293, s.c. 74 N. W., 918, with the authorities, and the other in 40 L. R. A., 515, 518 (viii.), et seq., s.c. 74 S. W., 918. Judgment reversed, verdict set aside, and, cause remanded for a neio trial.