Ussery v. Pearce

1 White & W. 26

• Court: Court of Appeals of Texas
• Decided: May 24, 1877
• Docket: No. 58, Op. Book No. 1, p. 420
• Status: Published

Opinion

Opinion by

White, J.

§ 54. Damages for hilling hogs; defendants’ plea of justification. Defendants in their answer admitted that they had killed the plaintiff’s hogs, but pleaded in justification that “ the hogs were an intolerable nuisance both to defendants and the public.” This plea having been stricken out upon motion of plaintiff, is assigned as reversible error. In a similar case, where the judge charged that “if the jury believed that the hog was of a predatory character and had the reputation of a chicken-eating hog, then they would find for defendant, as any man had a right to abate a public nuisance,” the supreme court of North Carolina held that the doctrine was not supported on principle or authority, and if recognized would lead to monstrous consequences. [Morse v. Nixon, 6 Jones’ N. C. Law, p. 293.] Such acts (wantonly killing the hogs of another) necessarily tend to violence and breaches of the peace and neighborhood animosities, which destroy the peace, harmony and good order of society, and are eminently cases for damages by way of punishment and prevention. In trespass, when the party wantonly violates the law, the jury should not be sparing in damages. [Champion v. Vincent, 20 Tex. 811.]

Affirmed.