Sabin v. Smith (1915) · DecisionDepot

Sabin v. Smith

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Feb 27, 1915 No. Civ. No. 1451.Published

Before: Kerrigan

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Holding. The court held that a property owner is justified under common law in killing a dog that is trespassing and attacking domestic poultry on the owner's premises, and that Civil Code section 3341 does not abridge this right.

Issues

Whether Civil Code section 3341 precludes a property owner from killing a dog that is attacking poultry on the owner's premises.
Whether the relative value of a dog compared to the property it is attacking affects the owner's right to kill the dog in defense of that property.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The section was not intended to, nor does it, abridge the common law right of a person to defend his domestic animals against the attacks of dogs, or to kill such dogs when the circumstances warrant the belief that his property is in peril.”

“The right to kill a dog found trespassing and endangering property is not affected by the relative value of the dog and the property being injured”

Synopsis

APPEAL from a judgment of the Superior Court of Santa Clara County and from an order denying a new trial. P. F. Gosbey, Judge.

The facts are stated in the opinion of the court.

[677]

KERRIGAN, J.

The plaintiff was the owner of a Russian wolf hound which was killed by the defendant. This action was brought to recover the sum of three hundred and fifty dollars, the alleged value of the hound, and for the further sum of one thousand dollars as exemplary damages.

It is the claim of the plaintiff that the killing was wrongful, unlawful, and malicious. Defendant, answering, denies that his act was malicious, and alleged that the hound in question was one of a pack of savage and ferocious dogs which was a common and a public nuisance, and at the time of the killing 'the said pack had trespassed upon the defendant’s premises, entered an inclosure set apart for his poultry, and chased and worried such poultry; that the said dogs were driven away, but shortly thereafter the dog mentioned in the complaint and another member of the pack returned, and renewed their attack upon the defendant’s poultry, pulling the feathers therefrom and mutilating one of the chickens so that it had to be killed; that thereupon the defendant, in order to protect his poultry, shot at said dogs to drive them away and prevent further depredations upon his flock, and in so doing killed one of the dogs.

The evidence without conflict supports the defendant’s contention; and the trial court found that under these circumstances the defendant was justified in killing said dog, and accordingly gave judgment in his favor.

Plaintiff does not deny the truth of the evidence presented by the defendant, but insists that such facts do not constitute a defense to her action, and assigns the rulings of the trial court in the admission of this testimony as error requiring a reversal of the judgment.

It is her contention that section 3341 of the Civil Code is in itself conclusive upon the subject; and that the obvious intention of the legislature as revealed by the language of the act was to omit poultry in the enumeration of animals for the worrying, wounding, or killing of which a dog might be killed, and to confine the owner of such poultry to the more tardy action for damages at law.

The section invoked by the plaintiff reads as follows:

“The owner, possessor, or harborer of any dog or other animal, that shall kill, worry, or wound any sheep, angora goat, or cashmere goat, or poultry, shall be liable to the owner of

Sabin v. Smith

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Synopsis

KERRIGAN, J.

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