Wood v. Stotski

Bond, O. J., delivered the opinion of the Court. The one question raised on this appeal is whether, on the testimony, the court could rule as a matter of law that a killing of plaintiff’s dogs while trespassing on the defendant’s land was justified as a reasonable exercise of force. The lower court so ruled, and directed a verdict for the defendant on the ground that it was so justified. But this Court has concluded that the question should have been left to the jury for their decision.

The testimony is conflicting on almost all the crucial points. That of the defendant tended to show provocation in previous molestation and disregard of his rights, ruthless damage and destruction of his crops by hunters, and frequent necessity for driving the hunters off. The plaintiff ⁵¹⁰ himself testified to some previous difficulty between the defendant and himself and with the plaintiff’s brother, with an assault on defendant by the latter. And the defendant’s son testified that on the night of the shooting the men and dogs had been walking aro-und a field of tomatoes.

From the whole testimony, however, we think a jury could be permitted to find that the plaintiff-with five other men went with plaintiff’s dogs on the land of the defendant, at night, in pursuit of a raccoon, and that the plaintiff had hunted there previously; that the dogs were duly licensed, and although the lawful season for such hunting had not yet begun, the plaintiff and the men with him were merely exercising the dogs without any intention of killing or capturing-the raccoon pursued; that they entered -only a swamp and went only to a tree where a raccoon was treed and the dogs were barking; that the defendant and his son came down and ordered the men off his place and they, in fear, put their lights out and hid in the swamp; that the defendant then ordered his son to shoot the dogs, and the son did so. Whether the jury would have believed the evidence to- this effect it is not our province to inquire. There was such evidence, and they were at liberty to- believe it. It is not admitted by the plaintiff that he or his dogs had caused any of the previous damage complained of, and he denies that they went into- the field this night.

And we do not understand the defendant or the witnesses produced by him to identify these particular dogs as having caused him any damage previously. Indeed it would not be within the province of the court to- find the previous molestation and damage as a fact. It is not disputed, and could not be disputed, that the defendant was entitled to take any measures reasonably necessary to protect himself and his property from injury, and that if so- necessary he might kill trespassing dogs. A landowner is not required to-