Opinion
August Term, 1849.
1. A person cannot kill a dog in the owner's house or yard, upon the pretense that he is a nuisance, because he had, at a former period, chased or bitten some one else.
2. When a man has been attacked by a dog on the owner's premises, but the dog is driven off by the family, so that the man is no longer in danger of being bitten, he is not justified in killing the dog, while the latter is running from him.
APPEAL from the Superior Court of Law of ASHE, at Spring Term, 1849, Ellis, J., presiding.
(260) The action is trespass for killing a dog, the property of the plaintiff; and the pleas are, that the dog was a nuisance and that any person had a right to kill him, and that the defendant killed the dog in defending himself from an attack on him by the dog, and was obliged to kill him in order to prevent the dog from biting and worrying the defendant. On the trial evidence was given that the plaintiff and defendant were neighbors and in the habit of visiting each other; and that upon a visit to the plaintiff's in the daytime the defendant entered the plaintiff's yard, when the dog, being loose, attacked the defendant and would probably have bitten him if he had not been prevented by two of the daughters of the plaintiff, who lived with him, called off the dog, and also beat him with a pole and drove him away; and that, after the dog had been so driven away and was going under a house in the yard, at the distance of ten steps from the defendant and the plaintiff's daughters, the defendant with a gun, which he brought with him, contrary to the request of the plaintiff's daughters, shot the dog and killed him. On the part of the defendant evidence was given that a pathway passed through the defendant's land, near the house, along which persons frequently went to church and to mill, in order to cut off an angle in the public road, and that the dog was in the habit of attacking persons in the pathway. On the part of the defendant evidence was further offered that at three different times the dog had attacked persons off the plaintiff's land; but the evidence was rejected.
The presiding judge instructed the jury that the plaintiff had a right to keep the dog on his own premises, however fierce, unless he was a nuisance, and that there was no evidence that this dog was a nuisance, and that therefore the defendant was not justified in killing him, unless in defense of himself; and that if the dog had retreated as stated, and was still retreating, the (261) jury might infer therefrom that the defendant did not shoot the dog to protect himself. The jury found for the plaintiff, and from the judgment the defendant appealed.
Boyden, Clarke and H. C. Jones for plaintiff.
Bynum and Craige for defendant.
We doubt not that a dog may be a nuisance so as to authorize any person to kill him, as if he be mad and at large; for, in such a state, he is no longer mansuetae natural, and the consequences of a bite from time to time, to either man or beast, may be so dreadful and so general as to justify his destruction as soon as possible. But dogs are in many respects useful, and with many persons favorite animals; and we are not aware that fierceness, merely, and attempts to bite, or even the actual biting of one or more persons, have ever been held to empower another person, at a different time, to kill them, and especially to go to the owner's yard for that purpose. As a watch-dog his value is constituted by his being sharp and dauntless; and therefore it would seem those properties cannot, in themselves, convert him into a nuisance. Hence, the evidence rejected was irrelevant. If, indeed, the defendant had been bitten by the dog, it might have been proper to show the savageness of the brute, and to insist that the owner, if he had knowledge of his worrying people, ought to have confined him, so that he could not set on people passing, or bite a person lawfully going to the owner's house; and to that purpose his biting twice or even once has been held sufficient to make the owner liable, if he did not kill or confine the dog. Bul. N. P., 76; Smith v. Pelah, St., 1264. But here the question, as to that point, is entirely different; that is, whether a person can kill a dog in the owner's house or yard, upon the pretense that he is a nuisance, because he had at a former period chased or bitten some one else; and we hold that he cannot. Then, as to (262) the second plea, the instructions appear to the court to be unexceptionable. A person is not bound to stand quietly and be bitten by a dog, nor to give him what might be called a fair fight among men. But if a fierce and vicious dog be allowed to go at large, and he runs at a person, as he lawfully gets to a house, or in passing along the road, apparently to set on the person, or, for example, on the horse he is riding, it seems but reasonable the person should protect himself from the injury of a bite to himself or his horse by killing the dog; for, although a man has a right to keep a dog for the protection of his house and yard, yet he ought to keep him secured, and not let him loose and uncontrolled at such hours and in such places as will endanger peaceable and honest people engaged in their lawful business. If, therefore, this dog were one of the kind supposed and the defendant had shot him as he came at him, and when he had reasonable grounds to think that the dog could not be restrained by the owner or his family, and would bite him, we should hold that he did no more than he had a right to do. But when the plaintiff's family were at home, and, by their immediate interference and commands and punishment, governed and drove away the dog, so as not only to prevent him from biting the defendant at that time, but also to save the defendant from all danger then, by driving the dog away, the killing of the dog, after that, and against the urgent entreaties of the family, could have been only on the pretense and not on the reality of protecting the defendant from an attack at that time, and the circumstances were properly left to the jury as evidence on which they might find that the defendant did not act on the defensive.
PER CURIAM. Judgment affirmed.
Cited: Mowery v. Salisbury, 82 N.C. 177.
(263)