160 Minn. 402 | Minn. | 1924
For the killing of his hound plaintiff recovered a verdict against appellant, Fred Petersdorff, who appeals from the order denying a new trial.
Plaintiff was permitted to testify that he paid $75 for the dog, when he bought him, about 3 years before be was killed. Granting this was error, it should not cause a new trial. The jury awarded no more than $75, although the uncontradicted testimony of the value of the animal when killed was $150. As the record stands, it would appear that the objectionable testimony benefited rather than prejudiced defendant.
Error is also assigned upon rulings excluding evidence as to the habits and character of the dog. This was not offered to affect the value of the animal,- but to prove him a nuisance which appellant was authorized to destroy. We think the ruling right. While the answer contained allegations that plaintiff habitually permitted the dog to pursue, hunt and kill game birds and that on the morning he was killed he was pursuing and hunting game birds, mink, muskrat and coon out of season, and wild animals in a field of standing grain of defendant’s father, there was no offer of proof that he was hunting or pursuing any protected animal, or that the field in which he then was found was inhabited or frequented by game birds.
The statute under which appellant seeks to justify the killing is section 56, c. 400, p. 438, Laws 1919, as amended by chapter 426, p. 636, Laws 1923, reading:
“The owner or trainer of a dog may take the same afield for the. purpose of training said dog from August 15th to September 15th following, both inclusive, provided that such owner or trainer shall carry no firearms and that no injury be inflicted upon any game birds or quadrupeds contrary to law. The use or training of dogs between December 1st and August 14th following, both inclusive, in fields inhabited or frequented by game birds is prohibited. Any dog so used is hereby declared to be a public nuisance and may be summarily killed by any person.”
Dogs are property (G. S. 1913, § 8878). One who wrongfully takes, injures or destroys a dog is answerable to the owner in damages, and, if a dog trespasses or injures another, the owner is liable. Only in two instances do our statutes forfeit without a hearing a dog’s life. One is that quoted, and the other applies when he is found worrying or injuring sheep, or where the owner of the sheep finds the dog not under the control of the owner or other person upon premises where the sheep are kept. A statute which permits one person summarily to destroy valuable property of another, should not be extended by construction beyond the express conditions under which it may be done.
We do not believe the quoted statute was intended to authorize any person to kill a highly-priced dog straying during the forbidden season into a field inhabited by game birds. Dogs used to hunt game birds usually need no restraint on account of viciousness. Dogs generally are not confined and, even if tied up or shut in, do sometimes escape. It would not be a reasonable construction of the statute to say that a dog which has escaped from the owner may be shot by any one who finds it in territory where are game birds. The law in terms is aimed at the conduct of the owner. He and the trainer of a dog are forbidden to use it out of season in the fields frequented or inhabited by game birds. When the persons having a dog in charge undertake to use the same contrary to this statute the animal found being so used may be killed, but not otherwise.
Upon the pleading and proof tendered plaintiff was entitled to an instructed verdict for the value of the dog.
The order is affirmed.