Ex Parte Minor
83 So. 475
Ala.
1919
Check Treatment
SOMERVILLE, J.

We agree with’ the holding of the Court of Appeals that the defendant’s fourth plea was not subject to the grounds of demurrer interposed, and that its elimination by the trial court on demurrer was erroneous.

[1,2] The relative values of the dog that was killed and the guinea fowls to be protected by his killing has been held to be “a proper circumstance for the jury to consider in arriving at a conclusion whether the defense was a reasonable one under the circumstances.” Kershaw v. McKown, 196 Ala. 123, 72 South. 47. But there is no rule of law that the defense against liability for *482 killing the dog must have been based upon a showing that the fowls thus protected were in value equal to or, not greatly less than the value of the dog. Kershaw v. McKown, supra. That question is comprehended in the issue of reasonable necessity for the killing, and need not be alleged in the plea.

[3] But we think an important limitation upon the rule must be observed, viz. that the jury must have regard for relative values as they reasonably appeared at the time to the defendant. Certainly he could not be convicted of an unreasonable defense of his poultry because of valuable qualities in the trespassing dog, whether of pedigree or training, not apparent to the observation of, a man of ordinary intelligence, and not ordinarily inherent in dogs of a similar appearance.

Counsel for petitioner is in, error in his assumption that plea 4 is addressed only to the complaint as a whole. On the contrary, it is pleaded “to the complaint as amended, and separately to each count thereof.”

If the consideration by the jury of relative values, as affecting the reasonableness of the killing, in such cases as this, had not already been approved by this court, the writer would be inclined to the view that the owner of domestic animals or poultry kept by him upon his own premises 'may lawfully slay any trespassing animal if that be necessary to preserve his own, and that his right to do so cannot be qualified by any consideration of comparative values. See the very able and interesting discussion of the subject by Doe, J., in Aldrich v. Wright, 53 N. H. 398, 16 Am. Rep. 339.

[4] But it is insisted for petitioner that even if plea 4 were improperly eliminated on demurrer, defendant had the full benefit of the plea by the instructions given by the trial judge to the jury, and it was error without injury. The principle invoked is sound, but this court does not apply it to rulings of the Court of Appeals, except where its application has been omitted or denied by that court upon facts appearing in its opinion, and which clearly demand its application. Birmingham South. Ry. Co. v. Goodwyn, 202 Ala. 599, 81 South. 339.

On this question, therefore, we cannot say that the elimination of plea 4 was not reversible error.

[5] We think, however, that the doctrine declared by the Court of Appeals that malice cannot be predicated of defendant’s act in killing the dog unless it appears that he entertained malice toward the owner is a misapplication of a narrow and doubtful rule of construction which has been given to our criminal statute for the punishment of malicious injury to animals. In civil cases like this there can be no reason for such a qualification of liability for a malicious or wanton injury to another’s property.

The writ of certiorari will be denied. Writ denied.

ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.