82 So. 42 | Ala. Ct. App. | 1919
This is an action of trespass by appellee against appellant to recover damages for the killing of a dog. Some of the counts charge that the act of killing the dog was "willful and intentional," therefore wrongful (Minor v. Coleman,
As to whether the necessity to kill in the particular case exists, and whether or not excessive force was used, are questions of fact, in the determination of which the nature of the attack, from what the danger proceeds, the character of the property in peril, the relative importance of the harm threatened (involving a consideration of the relative value of the property) and that which is done in defense, are circumstances that should be submitted to and considered by the jury. Kershaw v. McKown, supra; Nesbitt v. Wilbur, supra.
Under this phase of justification the inquiry as to whether the owner of the animal had knowledge or notice of its vicious propensities is not material. Crow v. McKown, supra; Kershaw v. McKown, supra.
But it is essential to justification under this rule of law that the actor have reasonable cause to believe that it is necessary for him to kill in order to preserve the property attacked from destruction or serious harm. Livermore v. Batchelder,
The defendant's plea 2 does not meet this requirement, and the demurrers thereto were properly sustained. Plea 4, however, in its averments meets all the requirements, and the court erred in sustaining the demurrer thereto. The defendant's plea 3, predicated upon the same principle as plea 4, and which is in some respects similar to that plea, by its averments carries a greater burden than plea 4, and for this reason the doctrine of error without injury cannot be applied to this ruling of the court.
The defense presented by the defendant's fifth plea is sustained by principles equally as well grounded. The principles embraced in the maxim, "Sic utere tuo ut alienum non lædas," are a qualification on the rights of the owner to the use and enjoyment of his property to the extent that it cannot be used to the hurt or unreasonable annoyance of his neighbor, and is applicable alike to personalty as well as realty. Kinney v. Koopman,
"Any person who, owning or having in his possession, or under his control, any dog or hog known to worry or kill sheep, domestic fowls, or goats, who suffers such dog or hog to run at large, must * * * be fined not less than five, nor more than fifty dollars." Code 1907, § 6236.
The law touching this phase of justification is well stated by the Supreme Court of Pennsylvania thus:
"There was evidence, and pretty strong evidence that the dog or slut was vicious, ferocious, and savage, and that this was known to the plaintiff. A dog may be so ferocious as to become a public nuisance; and in such cases, if his owner permits him to run at large, any person may kill him. Public convenience and safety require and justify such a rule of law. The animal ceases to be reclaimed and domesticated, except for the convenience and ill temper of his master; and all other people, to whom he is a dangerous and vexatious annoyance and nuisance, may treat him as feræ naturæ and slay him. [Putman v. Payne] 13 Johns. Rep. [N.Y.] 312. The court ought to have so stated the law to the jury, and allowed them to determine from the facts whether the dog or slut was of the character I have described." King v. Kline,
The principle is also discussed in Hubbard v. Preston,
Here notice or knowledge on the part of the owner of the vicious or predatory habits of the animal is a material inquiry, unless the animal is such as that the law charges him with notice of its vicious tendencies. Hayes v. Miller,
The evidence in this case shows that the dog, when killed, was trespassing on the *104
defendant's premises, and there is no evidence that the defendant, or his servant Ward knew that the plaintiff was the owner of the dog, nor was there any other evidence tending to show that the act of killing the dog was prompted by malice toward its owner. Therefore the affirmative charge might well have been given for the defendant as to the counts charging that the act was "malicious." Hobson v. State,
The case as now presented is somewhat different from what it was on the former appeal. Jim Ward did not testify as a witness on the last trial, and there was evidence tending to show that the defendant admitted that he killed the dog, and no eyewitness to the occurrence was examined, so the question as to whether the dog was killed by the defendant or his servant was for the jury under the evidence in this case.
The defendant's instruction to Ward, according to his own testimony, delegated to Ward the authority to determine whether the dog that was killed was one of the dogs that had previously trespassed upon the defendant's premises and had been in the habit of worrying and destroying defendant's fowls. Therefore the defendant was not entitled to the affirmative charge, on the theory that if plaintiff's dog was not one of those dogs, Ward was acting without the scope of his authority. For like reasons, Charges A and B, refused to the defendant, were properly refused.
Under the evidence in this case the question as to whether there was an impending necessity to kill the dog in order to save the fowls from destruction was for the jury. It is likewise a question for the jury as to whether the dog was possessed of such vicious and predatory habits as that it was a common nuisance; and it was likewise a question for the jury as to whether the plaintiff had notice or knowledge that the dog had such vicious or predatory habits. The affirmative charge requested by the defendant was therefore properly refused.
For a like reason, charge 3, given at the request of the plaintiff, should have been refused. Code 1907, § 6236.
The rule announced in Kershaw v. McKown,
Reversed and remanded.
