154 N.Y.S. 333 | N.Y. App. Div. | 1915
This is an action in tort for malicious injury to a dog. It appears that respondent’s testator on a warm afternoon in June, 1913, in the city of Troy, was sitting upon the grass in the shade of a tree and upon a slope or terrace running from the sidewalk up to the lawn of appellant’s mother, which is several feet above the level of the sidewalk. The street line is four and four-tenths feet from the inside edge of the sidewalk and the top of the terrace is about seven feet from the sidewalk. The testator’s dog was playing near him with a ball, when, according to his story, the appellant came across the lawn and told him to take the dog away. Plaintiff’s testator then called the dog which approached appellant in play with the ball in its mouth, who thereupon threw at it a stone which he took out of his pocket and which hit the dog on the head, causing the injury complained of. The dog was of good size and the injury was a severe one, consisting of a concussion of the brain with convulsions, from which the animal has never fully recovered. The severity of the injury would indicate that the appellant was very near the dog when he threw the stone, in accordance with the testator’s story, rather than fifteen or twenty feet away, as testified to by the appellant. It seems that on at least one prior occasion the testator and his dog had been ordered off these premises by appellant’s mother and that she had also complained to the police about the man and dog being on her lawn. There were no flowers or shrubbery about the lawn and there was no evidence that the man or dog had ever done any damage there. The dog was a female, but was kept on a leash when in heat. It was a well-bred French poodle, and no claim is made that it was vicious. The jury were instructed that they might find exemplary or punitive damages, and they have returned a verdict for $155.
It is further claimed by the appellant that the learned trial judge erred in instructing the jury that they might allow exemplary damages. Appellant claims that, as the dog was a trespasser at the time, this defendant, who was then a well-grown youth over eighteen years of age, had the right in acting for his mother to use means to remove the dog even to the extent of killing it. For this proposition reliance is placed upon Kiff v. Youmans (86 N. Y. 324), which holds that when more force than necessary is used to remove a trespasser punitive damages may not he recovered. But the opinion of the court by Judge Damforth is careful to limit this doctrine to the particular case before them, where it was assumed that the object of the defendant was to stop a trespass, not to “ take an opportunity, under pretense of right, to inflict on him a wanton and malicious assault. ” The injury in the case at bar was so sudden and severe that we think the jury might consider it rather in the nature of a malicious attack upon a harmless and unoffending animal than merely the exercise of more force than was necessary in the course of the removal of this dog from the
A further assignment of error is that the damages claimed were not properly proven. The evidence of the veterinary who attended the dog after it was injured was to the effect that it was a well-bred French poodle, that there was no market for such dogs in Troy, but that he knew of sales of this breed of dogs in New York city, the nearest market for such dogs, and that its reasonable market value there was $150 to $200. He also testified that after the injury the dog had little if any market value. We see no error in this method of proving value. The fact that a dog of this kind had but little market value in the immediate vicinity allowed proof of its value in the nearest market for such animals. Besides, even if the animal had almost no market value, it was evidently a pet and the jury may have assigned by far the greater portion of the damages allowed to the punitive part of their verdict.
The judgment and order should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.