Perry v. . Phipps , 32 N.C. 259 ( 1849 )

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)