Hodges v. Causey

1. Doas. Killing. Trespassing. Notice by plaintiff to defendant to keep off of the latter’s premises with his dogs, will not alone justify the former in killing a dog of the latter running through rows of mature' corn, even if defendant apprehended that the animal would speedily pass into and damage open cotton standing in the same field. 2. Same. Property. Right to 7cill. Nature and instincts. The owner of a dog can maintain an action against a person who wrongfully kills it; but when the right to kill a trespassing dog is in question, the nature and instincts of the animal may properly he considered. 3. Same. Proof of value. Opinions. The owner of a dog wrongfully "killed by defendant is not compelled to prove its market value: if it has no market value, he may prove its special value to him by showing its qualities, characteristics and pedigree, and may, as to value, offer the opinions of witnesses who know such qualities, etc.

From: the circuit court of Sunflower county. HoN. F. A. Mosttgomeey, Judge. • Hodges, the appellant, was the plaintiff in the court below; Causey, appellee, was defendant there. The suit was an action of trespass for-the killing by defendant of plaintiff’s dog — an English deerhound. At the trial of the case defendant’s evidence showed, or tended to show,-that at the time of the killing the dog was running through defendant’s field, and that the killing was done to prevent the. dog from damaging appellee’s cotton, which was in the same field with the corn, through the rows of which •the-dog was running; that appellant had been notified twice to keep his dogs off of appellee’s farm. The first instruction given by the court for defendant is as follows; “The court instructs the jury that the plaintiff must prove the market value of the dog to their satisfaction, by a preponderance of the evidence, or they will find for the defendant.” The second instruction given for defendant was this: “The court further instructs the jury that if they believe from the evidence that Causey gave the plaintiff actual notice to keep off his premises with his dogs, then Causey had a right to kill the dog if she was damaging his crop, and he could not otherwise prevent her running through the field.” The plaintiff’s instructions as asked were modified by the . court so as to make them harmonious with the defendant’s instructions above quoted. The trial resulted-in a verdict and judgment for defendant, from which plaintiff appealed to the supreme court. The first and second instructions given for defendant are clearly erroneous, and the court below erred not only in giving them, but as well in modifjdng the plaintiff’s instructions so as to conform them to the charges given defendant. This will be apparent from an examination of the following authorities: Code 1S92, § ISIS; Jones v. Illinois, etc., Railroad Go., 75 Miss., 970; Heilegnann v. Rose (Texas), 13 L. ft. A., 275; Bowers v. Horan (Mich.), 17 L. It. A., 773; Graham v. Smith (Ga.), 40 L. It. A., 503; Mullaliy v. People, SO N. Y., 365. According to the evidence the defendant had no other adequate remedy, or any other means of protecting his property from invasion by the plaintiff’s dog. The owner of a herd, upon discovering a number of bucks tupping his ewes o,ut of season is, after' making ineffectual efforts to drive the bucks off, justified in killing them. Thomas v. Slate, 14 Tex. Ct. App., 200. In the case of Brill v. Flager, 23 Wend. (N. Y.), 354, a dog was in the babit of haunting the defendant’s household and howling and disturbing the family. The defendant shot the dog, and was sued in.trespass for its value. The court said: “It would be mockery to refer a party to his remedy by action; as it is far too dilatory and impotent for the exigency of the case. Whatever unlawfully annoys or does damage to another is a nuisance, and may be abated by the party aggrieved, so that he commit no riot in the doing of it.” In Hodge v. State, 11 Lea (Tenn.), 528, it was held that a person has a right to protect his premises against depredations of mischievous dogs, and for that purpose may use such means as are reasonably necessary, and if the depredating animal is thereby caught in a steel trap and mutilated, it would not be needless torture under the satute against cruelty to animals. In Livermore v. Batchelor, 141 Mass., 179, the lower court found the facts, without a jury trial, to be that the defendant had a reasonable ground to believe that the trespassing dog would kill his poultry, but did not find that he had reasonable ground to believe that it was necessary to kill the dog to prevent it from killing his fowls. On this ground the defendant was held liable for killing the plaintiff’s dog. The ground of the decision plainly is, that if the finding of facts had been extended to the latter point, the defendant would not have been held liable. In the case now before the court this dog, on at least four occasions, had chased deer through the defendant’s cotton crop; the defendant had twice notified plaintiff not to thus trespass on his land, and finally, the defendant testified, without contradiction, that shooting the dog was the only way that he had of preventing these trespasses. The defendant could not catch and impound the dog. It was useless to try to drive it away, for it would return. And the dog could climb any ordinary fence. The owner of the dog was entirely at fault. It would be a singular state of the law if a landowner had, under such circumstances, no adequate remedy, and could not protect liis property. Mississippi “dog law,; is embraced in our statute making-dogs property in the sense of being subjects of larceny, and tbe decision of this court in Jones v. Illinois, etc., Railroad Go., 75 Miss., 970. The court’s attention is called, however, to the .cases of Hubbard v. Preston, 15 L. P. A., 250, and Lipe v. Blaclmclder, 25 Ill., 119. In the latter it is held that hounds running across a wheat held may be shot if they cannot be otherwise kept out of the crop. See, also, King v. Kline, 6 Pa., 318.