City of Buckhannon Ex Rel. Cockerill v. Reppert

West Virginia Supreme Court

City of Buckhannon Ex Rel. Cockerill v. Reppert

188 S.E. 870, 118 W. Va. 10, 1936 W. Va. LEXIS 169

CourtWest Virginia Supreme Court

DecidedNovember 24, 1936

Docket8431

StatusPublished

Cited by6 cases

This text of 188 S.E. 870 (City of Buckhannon Ex Rel. Cockerill v. Reppert) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

City of Buckhannon Ex Rel. Cockerill v. Reppert, 188 S.E. 870, 118 W. Va. 10, 1936 W. Va. LEXIS 169 (W. Va. 1936).

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Opinions

Hatcher, President:

The plaintiff recovered a judgment against an officer, on his bond, for injuries which allegedly resulted from incidents connected with the killing of a dog.

Some of the evidence was conflicting. From plaintiff’s evidence and that which does not conflict with hers, the following case is presented for our review. The defendant, a city policeman, received an order from his chief to “do away with” a certain dog, not plaintiff’s, against which complaints of viciousness had been made to the police department. As the defendant approached the dog, it lunged at him in a threatening manner. Thereupon, from a distance of about four feet, he shot it with a revolver. The bullet was not fatal and the dog ran, with defendant in pursuit. The plaintiff’s residence was nearby. Her husband came outside to investigate the shot and not seeing anyone, re-entered the house, leaving the door ajar or insecurely fastened. The dog outdistanced the deféndant and sought haven through that door, passed one of plaintiff’s children in the hall, and entered a room occupied by renters, where it maintained a belligerent attitude. It left a trail of blood on the floors of the hall and the room. The defendant traced the dog to and followed it through the open door into the house. *12 He first made an effort to lasso the dog which was ineffectual. The renters insisted that he get the dog out of their room- some way; he replied that he would have to shoot it; the plaintiff’s husband said not to shoot in the house but suggested no alternative; the defendant closed the door and killed the dog with two carefully placed revolver shots. He then removed the dog from the house and, returning, assisted in wiping up the blood.

Plaintiff saw the dog pass her child in the hall, saw and smelled the blood on the floor and heard the shots. She testified that all of those circumstances terrified and excited her to such an extent that within a few days she suffered the miscarriage of a six weeks’ foetus; and that since then she has lost weight, has slept poorly, has been nervous and has had backache.

A city ordinance authorized the police to kill a vicious dog at any time found running at large within the city limits. This dog was at large. Evidence on the dog’s disposition was contradictory; but we do not regard that contradiction as material in this case, since it was not incumbent on defendant to justify, as against plaintiff, the order of his chief. His “not to reason why,” his but to execute that order.

Plaintiff took the position in the circuit court that the entry into her house and the killing of the dog therein by defendant were both unlawful and he should respond in damages for the alleged result of his conduct. She also proposes now that the manner in which he went about killing the dog, initially, was negligent. Since that theory was neither pleaded nor litigated in the circuit court, we cannot consider it here. Defendant contends that the dog’s attack on him left no choice of place where he should commence the dog’s destruction; that its entrance into plaintiff’s house was unforeseen and happened through no fault of his; that such entrance created an emergency and it was his duty, whether invited or not, to get the dog out of the house, and in doing so, he was careful and used the only means practicable.

Since Magna Charta, a man’s home has been his castle, *13 but a castle gate is no bar to lawful authority. It is lawful for an officer in fresh pursuit of an escaping criminal even to force the door of a stranger, if the officer has reason to believe the criminal is within. Brooks v. Commonwealth, 61 Pa. 352, 10 Am. Dec. 645; Commonwealth v. Tobin, 108 Mass. 426, 11 Am. Rep. 375; 4 Am. Jur. subject Arrest, secs. 86 and 87. We are cited no case with facts like the instant one; but we see no difference in principle between this case and that of the fleeing criminal. Here, it was clearly defendant’s duty to enter and remove the dog from the house. In the manner of doing so, he had a reasonable discretion. Plaintiff’s husband had no more right to control that discretion within the house than without it. His bare request not to shoot in the house was of no moment against the apparent necessity of defendant’s doing so.

The judgment is reversed.

Reversed.

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Hatcher, President:

The plaintiff recovered a judgment against an officer, on his bond, for injuries which allegedly resulted from incidents connected with the killing of a dog.

Some of the evidence was conflicting. From plaintiff’s evidence and that which does not conflict with hers, the following case is presented for our review. The defendant, a city policeman, received an order from his chief to “do away with” a certain dog, not plaintiff’s, against which complaints of viciousness had been made to the police department. As the defendant approached the dog, it lunged at him in a threatening manner. Thereupon, from a distance of about four feet, he shot it with a revolver. The bullet was not fatal and the dog ran, with defendant in pursuit. The plaintiff’s residence was nearby. Her husband came outside to investigate the shot and not seeing anyone, re-entered the house, leaving the door ajar or insecurely fastened. The dog outdistanced the deféndant and sought haven through that door, passed one of plaintiff’s children in the hall, and entered a room occupied by renters, where it maintained a belligerent attitude. It left a trail of blood on the floors of the hall and the room. The defendant traced the dog to and followed it through the open door into the house. *12 He first made an effort to lasso the dog which was ineffectual. The renters insisted that he get the dog out of their room- some way; he replied that he would have to shoot it; the plaintiff’s husband said not to shoot in the house but suggested no alternative; the defendant closed the door and killed the dog with two carefully placed revolver shots. He then removed the dog from the house and, returning, assisted in wiping up the blood.

Plaintiff saw the dog pass her child in the hall, saw and smelled the blood on the floor and heard the shots. She testified that all of those circumstances terrified and excited her to such an extent that within a few days she suffered the miscarriage of a six weeks’ foetus; and that since then she has lost weight, has slept poorly, has been nervous and has had backache.

A city ordinance authorized the police to kill a vicious dog at any time found running at large within the city limits. This dog was at large. Evidence on the dog’s disposition was contradictory; but we do not regard that contradiction as material in this case, since it was not incumbent on defendant to justify, as against plaintiff, the order of his chief. His “not to reason why,” his but to execute that order.

Plaintiff took the position in the circuit court that the entry into her house and the killing of the dog therein by defendant were both unlawful and he should respond in damages for the alleged result of his conduct. She also proposes now that the manner in which he went about killing the dog, initially, was negligent. Since that theory was neither pleaded nor litigated in the circuit court, we cannot consider it here. Defendant contends that the dog’s attack on him left no choice of place where he should commence the dog’s destruction; that its entrance into plaintiff’s house was unforeseen and happened through no fault of his; that such entrance created an emergency and it was his duty, whether invited or not, to get the dog out of the house, and in doing so, he was careful and used the only means practicable.

Since Magna Charta, a man’s home has been his castle, *13 but a castle gate is no bar to lawful authority. It is lawful for an officer in fresh pursuit of an escaping criminal even to force the door of a stranger, if the officer has reason to believe the criminal is within. Brooks v. Commonwealth, 61 Pa. 352, 10 Am. Dec. 645; Commonwealth v. Tobin, 108 Mass. 426, 11 Am. Rep. 375; 4 Am. Jur. subject Arrest, secs. 86 and 87. We are cited no case with facts like the instant one; but we see no difference in principle between this case and that of the fleeing criminal. Here, it was clearly defendant’s duty to enter and remove the dog from the house. In the manner of doing so, he had a reasonable discretion. Plaintiff’s husband had no more right to control that discretion within the house than without it. His bare request not to shoot in the house was of no moment against the apparent necessity of defendant’s doing so.

The judgment is reversed.

Reversed.

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188 S.E. 870, 118 W. Va. 10, 1936 W. Va. LEXIS 169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-buckhannon-ex-rel-cockerill-v-reppert-wva-1936.

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