Scott v. . Cates

95 S.E. 551, 175 N.C. 336, 1918 N.C. LEXIS 66

• Court: Supreme Court of North Carolina
• Decided: April 10, 1918
• Status: Published

Opinion

AlleN, J.

It is the settled law of this State that an action may be maintained to recover damages for the unlawful killing or injuring of the dog of another, but if the dog is in pursuit of a domestic animal, and “if the danger to the animal, whose injury or destruction is threatened, be. imminent or his safety presently menaced, in the sense that a man of ordinary prudence would be reasonably led to believe that it is necessary for Mm to kill in order to protect Ms property, and to act at once, be may defend it, even unto tbe death of the dog, or other animal, which is about to attack it.” State v. Smith, 156 N. C., 628, and cases cited in the opinion.

This is but an application of the doctrine of self-defense to the protection of property, and, as in Homicides, the burden is on the defendant to prove matters of excuse to the satisfaction of the jury, the killing being admitted, the same rule prevails when it is sought to avoid liability for the destruction of property.

“The law esteems all private property sacred from the violent interference of others, and he who takes, injures, or destroys it, will be held a trespasser, until he shows a justification.” Hale v. Lawrence, 47 A. D. (N. J.), 195.

The presence of the dogs on the premises of the defendant gave him the right to drive them away, but not to injure them unnecessarily, although trespassing. 3 C. J., 134; 2 Cyc., 418; 1 R. C. L., 1136.

It follows that it was erroneous to .charge the jury that the burden was on the plaintiff to satisfy the jury that the shooting was unlawful and wrongful, instead of instructing them that the shooting being admitted, the burden was on the defendant to prove a legal excuse, as heretofore defined, to the satisfaction of the jury, and the error was very prejudicial to the plaintiff as the shooting was on the premises of the defendant, and the only evidence of the circumstances surrounding the shooting came from the defendant and his witnesses.

New trial.