197 P. 292 | Or. | 1921
Lead Opinion
Section 9358, Or. L., provides:
“Be it enacted by the Legislative Assembly of the State of Oregon, that the owner of any dog shall be liable for all damages that may accrue to any person or persons in the state by reason of such dog killing, wounding, or chasing any sheep or other domestic animal belonging to such person or persons, the same to be recorded [recovered] in an action for debt before any court having jurisdiction.”
“If any person shall discover any dog in the act of killing, wounding, or chasing any sheep or other domestic animals, in any portion of this state, or shall discover any dog under such circumstances as to satisfactorily show that such dog has been recently engaged in killing or chasing sheep or other domestic animals, for the purpose of killing them, such person is authorized to immediately pursue and kill such dog.”
Both sections were enacted in 1860, and apparently neither of them have ever been construed by this court. In the Session Laws, they, are combined in one law which is entitled: “An Act to provide for the protection of Sheep and other Domestic Animals.” The defendants contend that the dog was discovered “in the act of killing, wounding, or chasing sheep” or “under such circumstances as to satisfactorily show that such dog has been recently engaged in killing or chasing sheep,” and that for such reasons, the killing of the dog was justifiable under Section 5523, Or. L. The defendants having admitted the killing of the dog', it was for them to prove facts which would justify the killing. After reading Section 5523 to the jury, the court gave the following instruction:
“If you find that the dog in this case was chasing and attempting to kill the sheep, and he was found so doing, or if he had been chasing and killing the sheep he was afterwards pursued and killed, and if you find this by the preponderance of the testimony, that he was so chasing the sheep, then you will find for the defendant; on the other hand, if you find those are not the facts, that he was not chasing and killing the sheep, or that he had not been chasing or killing any sheep, then you will be entitled to find for the plaintiff. Those are questions you will thresh out in the jury-room. Apply the law as I have read it to you.”
“I didn’t pay very much attention to the dog, because whenever the stock worked out in the timber I could see him working on one side or the other bringing them in the road.”
Near the end of the journey the calves got tired, lagged behind, and often lay down and caused delay and made more or less trouble, and Eaton gave his personal attention to them, and the dog looked after and herded the older cattle, which were in the lead, and kept them in the road. In their brief, defendants quote and rely upon the following testimony as conclusive proof that the dog was discovered in the act of wounding or chasing Murphy’s sheep, or that it had been recently engaged in chasing the sheep for the purpose of killing them, and that they were legally justified in killing the dog. J. B. Eaton says:
“I heard a great roaring sound, and didn’t think anything then of the dog. My cattle were moving along on the road, and I saw a band of sheep stampeded; they ran across the road in front of me, perhaps 150 yards, and on over towards kind of an open field there was there. * * The sheep had passed on, and I sat there kind of settling a few cattle I had there, keeping them quiet, and a young fellow by the name of Lake — he told me his name was Lake, Boy Lake — came and said, ‘You had a dog?’ and I said, ‘Yes.’ ‘Well,’ he said, ‘You have got no more dog; I killed him.’ I said, ‘What did you kill him for?’ ‘Because,’ he said, ‘I saw him after the sheep, running the sheep.’ I think he said he killed some of*627 the sheep. ‘Anyhow, he ran after the sheep; stampeded the sheep. I think he said he killed some. I said, ‘I don’t think he eonld — I don’t think you could make the dog kill any.’ ‘Well, he killed them, all right.’ ”
The plaintiff Robert E. Eaton testified.
“I asked him what he killed him for, and he said it was in the heat of passion, and the dog had stampeded the sheep. I wanted to see the dead sheep, and he said the dog did not kill any, but crippled them up.”
Speaking of a conversation with the defendant Lake, the sheriff testified:
“Q. Mr. Roberts, at the time you had this conversation, was there anything said as to whether or not this dog was chasing sheep?
“A. I think so.
“Q. They said he was chasing the sheep?
“A. I think he said that.
“Q. You are pretty sure he said that?
“A. Yes, sir.”
As to this conversation E. L. Clark testified:
“Q. Was there anything said at that time about whether any sheep were actually killed or not?
“A. Yes, sir.
“Q. What was said?
“A. He said he didn’t kill any sheep; he said he had one sheep down, but he didn’t kill it.
“Q. The facts were, the dog had one sheep down, but didn’t kill it?
“A. Yes, sir, that is what he said.
“Q. How many other sheep did he say he had injured, if any?
“A. He didn’t tell us there at that time that he had injured any other sheep. He said he was among the sheep, scattered them, and that he had one sheep down, but didn’t kill him.
■ “Q. Sort of chasing after them?
“A. That is what he said — just what I told you.”
“Q. Jnst answer the question: At the time the herder struck the dog and tried to kill him, was he biting or injuring the sheep, or chasing them?
“A. Yes, sir; he was right in them, chasing them.
“Q. Do you know of your own knowledge about how many he bit?
“A. No, sir; I do not.
“Q. Do you know whether or not there was more than one?
“A. Yes, sir.
“Q. There was about how many, do you think?
“A. I know of three.
“Q. Were they bitten quite badly?
“A. Yes, sir.
“Q. How close were you to the sheep at the time the dog was chasing them?
“A. I was right at the head of them. We took them out and went around the head so they could not go any further.”
Yernon Masten gives the following testimony:
“Q. How did it come to be the dog was killed?
“A. The dog was chasing the sheep; we heard him, and one of the cows got in the band of sheep, and Mr. Eaton sent the dog after the cow, and the dog went after the sheep. We were leaving the sheep browse, and heard the dog barking, and we ran up, and he was chasing them and the sheep were down. I come on to a new place, a place where there was hardly any trees, and the dog had a sheep, tearing the wool out of it, and William called the dog, and it came to him, and Roy Lake took the dog and took a club and started in to kill him.
“Q. Was the dog biting the sheep when he had it down?
“A. Yes, sir.
“Q. Do you know how many he bit?
“A. Three.
‘ ‘ Q. Did he bite them pretty bad?
“A. Yes, sir.
*629 “Q. Did they bleed?
“A. Two of them; one of them wasn’t bit np very bad.
“Q. Two of them were bit np pretty bad, were they?
“A. Yes, sir.”
Upon this evidence, the appellants contend that they were entitled to a directed verdict. In Hinckley v. Emerson, 4 Cow. (N. Y.) 351 (15 Am. Dec. 383), it is said:
“It seems to be law that where a dog chases and kills one’s domestic animals on his land, he may kill the dog: Wadhurst v. Damme, Cro. Jac. 45; Barrington v. Turner, 3 Lev. 28. But if the dog merely chases or bites an animal, in order to justify killing the dog, it is necessary to show that he could not otherwise be separated: Wright v. Ramscott, 1 Saund. 84. But where a dog is ferocious and attacks persons, he may be killed, being considered a nuisance: Putnam v. Payme, 13 Johns. 312. The statute, allowing dogs that attack sheep to be killed, recognizes the common-law doctrine as above laid down: and vide Brock v. Copeland, 1 Esp. Rep. 203; Boulton v. Banks, Cov. Car. 254; Kinnon v. Davies, Cov. Car. 487. The judgment must be affirmed. ’ ’
From time immemorial the law has recognized the right of the master of the flock to kill a sheep-killing dog caught in the commission of the act. R. C. L., Volume 1, Section 70, says:
“Also, owing to the fact that sheep owners are especially subject to loss and annoyance from the predatory and wolfish instincts of dogs, it has always been held that a sheep-stealing dog, found lurking about or roaming over a man’s premises where sheep are kept, incurs the penalty of death.”
In 1899, Missouri enacted our identical statute. In the case of Reed v. Goldneck, 112 Mo. App. 310 (86 S. W. 1104), the Missouri Court of Appeals says:
*630 “Prior to the enactment of Revised Statutes of 1899, section 6976, one was not justified in killing a dog, even though it was on his premises, unless it was actually doing injury, or attempting to do injury, and threatening imminent peril to the proprietor’s domestic animals.
“Revised Statutes of 1899, Section 6976, authorizing the killing of dogs discovered in the’ act of killing, wounding, or chasing sheep, or under such circumstances as to satisfactorily show that they have been recently engaged in killing or chasing sheep or other domestic animals, is an act of outlawry, not_ only against sheep-killing dog;s, but against dogs discovered under suspicious circumstances which indicate that they have recently been engaged in killing or chasing sheep or other domestic animals, and authorizes the killing of such dogs, even by another than the owner of the animals killed or injured, or supposed to have been killed or injured.”
The dog in question was raised and trained as a cattle dog, and the jury found that it had a value of $500, and there is no evidence that it ever had been around or in any way mingled with sheep previous to September 4th. In testifying to a conversation with the defendant Lake, the plaintiff Robert E. Eaton says:
“I asked him what he killed him for, and he said he was in a heat of passion and was mad, and the dog .had stampeded the sheep. I wanted to see the dead sheep, but he said the dog did not kill any sheep, but crippled them up. I said, ‘ There is no dead sheep you can show me?’ He said, ‘No,’ but he said he was very sorry he had killed the dog, and he was willing to pay if he had anything to pay with, and wait until the boss came, and chances are it would be straightened up. I asked him if they were willing to pay for the dog, and he said he was, because he knew he made a big mistake in killing the dog, but he didn’t think when he was mad.”
“Q. Now, William, at the time Hr. Lake began to beat the dog he had possession of him, and the dog was not at that time chasing sheep?
“A. No, sir; he just had been.
££Q. He just had been?
“A. Yes, sir.
“Q. You called him to you and he came to you?
“A. Yes, sir.”
His brother Vernon says:
“Q. How did it come to be the dog was killed?
“A. The dog was chasing the sheep, we heard him, and one of the cows got out in the band of sheep, and Mr. Easton sent the dog after the cow, and the dog went after the sheep. We were leaving the sheep browse and heard the dog barking, and we ran up, and he was chasing them, and the sheep were down. I come on to a new place, a place where there was hardly any trees, and the dog had a sheep, tearing the wool out of it, and William called the dog, and it came to him and Roy Lake took the dog and took a club and started in to kill him.
“Q. You say some of the cows were in among the band of sheep and the dog went after the cow; was that the way?
“A. Yes, sir.
££Q. That scared the sheep and the sheep began to run?
££A. Yes, sir.
£ £ Q. Then after the sheep began to run the dog got hold of one of the sheep, didn’t he?
££A. Yes, sir.
££Q. How long did he hold the first sheep he got hold of?
££A. He just held a little while and then went on.
££Q. Hid he catch another one?
“A. Yes, sir.
<£Q. How long did he hold it?
*632 “A. He just bit it and knocked it down and went on, and over a little further he had a sheep down and was tearing him up.
“Q. As soon as your brother William called the dog, the dog came right to him, did it?
“A. Yes, sir.
“Q. The dog was friendly, was it?
“A. Yes, sir.
“Q. Wasn’t attempting to bite anybody?
“A. No, sir.
“Q. It wasn’t attempting to bite any person; it was friendly to all of you, and Mr. Lake took the dog by the tail and beat him over the head with the big club?
“A. Yes, sir.
“Q. Did you see Mr. Murphy then when he came back to where the dog was?
“A. Yes, sir.
“Q. What was the dog doing when you came back to him?
“A. He raised up and looked at us, and the boss shot him.
“Q. Did he raise on his front feet?
“A. No, sir; just turned his head and looked at us, and the boss shot him.
££Q. And it wasn’t'trying to kill any sheep when the boss shot him?
. ££A. No, sir.
££Q. The poor thing was lying there trying to get up?
££A. Yes, sir.”
Although as a defense the defendants allege that the sheep were on lands to which Murphy was entitled to possession, there is no evidence as to the ownership of or the right to the possession of the lands where the sheep were grazing.
When all of the evidence is considered as the nature, habits, training, and intelligence of the dog and the statements and admissions of Lake, and that at the bidding of his master the dog went out among the sheep for the purpose of rounding up the cow, with all the surrounding facts and circumstances, we cannot say, as a matter of law, that there is not sufficient evidence to support the verdict. The judgment is affirmed. Affirmed. Rehearing Denied.
Dissenting Opinion
Dissenting. — In this case there is no dispute but that the dog in question chased sheep which were in custody of the defendants, bit some of them, and was caught in the very act. The witnesses for the defendants are corroborated in a degree on this point by the testimony of the principal witness for the plaintiff, who saw the sheep stampeded in the direction of the place where the dog was killed.
Section 9359, Or. L., is quite plain, reading thus:
“If any person shall discover any dog in the act of killing, wounding, or chasing any sheep or other domestic animals in any portion of this state, or shall*636 discover any dog under such circumstances as to satisfactorily show that such dog has been recently engaged in killing or chasing sheep or other domestic animals for the purpose of killing them, such person is authorized to immediately pursue and kill such dog.”
It is argued that because one of the defendants stated that he was sorry he killed the dog and. offered to pay for him, his attitude thus expressed is to be taken as evidence that the dog was not killing sheep. This argument is fallacious. While the defendants, who discovered the dog chasing and biting the sheep, had a right to kill him as they did, they were not obliged to do so, and their regret at not having pursued milder measures is not in any sense a surrender of their actual statutory right to take the extreme remedy. The question of excessive defense of one’s property is not involved. When any dog of whatever value is caught “in the act of killing, wounding or chasing any sheep,” the statute marks him for slaughter at the hands of whoever catches him.
The Circuit Court ought to have allowed the motion of the defendants for a directed verdict in their favor, at the close of all the evidence in the case, and the judgment should be reversed, with directions to enter a judgment for the defendants, there being no testimony whatever in the record to sustain the verdict.