104 So. 222 | Ala. | 1925
The suit is to recover damages for the alleged negligent killing of plaintiff's dogs. The complaint, in separate counts, seeks recovery for negligently running trains over two dogs at different times. After reversal on former appeal (
No. 13 pleads in bar of the action that "said dog had been known to kill or worry sheep or other live stock without being set upon the same." This plea is based upon Code of 1923, § 6072 (2832), which reads:
"Dogs killing stock, and killing the dogs. No person must keep any dog which has been known to kill or worry sheep, or other stock, without being set upon the same; and any person knowingly keeping such dog is liable for double the value of all stock killed or injured by such dog, to be recovered by the owner of such stock before any court of competent jurisdiction; and no action shall be maintained against any one for killing such dog."
This statute dates from 1854, but does not appear to have been directly construed by this court.
Some kindred statutes have been considered. In A. G. S. R. Co. v. Wedgworth,
This court has also considered cases involving the killing of a dog while in act of injuring live stock or domestic fowls. These cases involve justification in the protection of one's property. Coleman v. Minor,
Another kindred statute makes it a misdemeanor *17 for the owner of a dog known to worry or kill sheep, domestic fowls, or goats, to suffer it to run at large. Code 1923, § 3219 (6236). Here knowledge or notice on the part of the owner is a material inquiry. Coleman v. Minor, supra.
Section 6072 of the Code of 1923, first above quoted, goes beyond any of these statutes, in that it expressly declares "no action shall be maintained against any one for killing such dog." At the time of the passage of this act the dog was considered property in such sense as to support an action for its wrongful killing. Parker v. Mise,
This case arose contemporaneously with the passage of the statute before us. It was there said, arguendo:
"It may be allowable to prove, as a justification for killing a dog, that the dog was a nuisance to the community, and was permitted to go at large."
We think this statute, prohibiting the keeping or ownership of such dog, and expressly granting immunity to any person who kills it, so outlaws the dog as a common nuisance as to destroy all property right therein. 3 C. J. p. 157. In such case, the plaintiff can suffer no injury to his property rights by the killing of the dog, whether done negligently or intentionally. The doctrine of relation between the killing and the status of the property announced in Ensley Merc. Co. v. Otwell,
It was not necessary to aver knowledge on the part of the plaintiff. The demurrer to plea 13 was improperly sustained. Hayes v. Miller,
The defendant interposed pleas of contributory negligence, to which demurrers were sustained. Plea No. 5 may be taken as a fair sample of all. This plea avers:
"That said plaintiff negligently permitted said dog to go on or near to defendant's railroad at a place and at a time and under circumstances whereby he knew that said dog would probably or likely be injured or killed by' the approach of a train on said railroad and under such circumstances that he could have, by the exercise of reasonable diligence, caused said dog to be extricated from danger from such approaching train."
The owner owes no general duty to keep his dog off a railroad track. Permitting it to go on the track is ordinarily not negligence.
In Central of Ga. Ry. Co. v. Martin,
The evidence, without conflict, showed plaintiff was not present or within call of the dogs, or either of them, and had no knowledge of their presence on the track. So if any of these pleas should have been held sufficient, it does not appear probable injury resulted to defendant.
The court below correctly placed the burden of proof in his oral charge. L. N. R. R. Co. v. Watson,
The isolated extract from the oral charge excepted to, standing alone, may have been misleading as to the burden of proof in showing the dogs were killed by defendant's trains, but taken with the entire charge, the proposition is made clear. Out of apparent caution, the judge later in the charge instructed the jury:
"It is not enough these dogs were killed on the track, if another came and killed the dogs, the defendant would not be responsible."
The court in his oral charge fully stated the rules governing opinion evidence of the value of the dogs. Lowe v. Reed,
The fact that plaintiff had been out hunting rabbits with the dogs on the morning before the dog "Bruce" was killed being in evidence, there was no error in admitting evidence from either side as to whether hunting rabbits in the daytime with fox hounds affects their market value. A person having knowledge of the value of dogs of the class may give his judgment upon their value, *18 upon description given him, although he has no personal knowledge of the dogs.
The question, "What was the dog worth?" when taken with the context and answer showing market value was in mind was free from error.
For error pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE, and THOMAS, JJ., concur.