Opinion
No. 5575.
February 26, 1931.
APPEAL from the District Court of the Seventh Judicial District, for Valley County. Hon. A.O. Sutton, Judge.
Action for damages for the killing of a fox. Judgment for defendant. Affirmed in part, reversed in part, and remanded with instructions.
F.M. Kerby and Wm. M. Morgan, for Appellants.
It is no defense that respondent did not know the fox had recently escaped from its owners. Even if it had never been in captivity it would have been a crime to have killed it at the time and under the circumstances shown by the evidence. (C. S., sec. 2783, as amended by 1927 Sess. Laws, chap. 258, p. 478.)
One cannot escape liability for damages for destroying the property of another on the ground that he acted in good faith and through an honest mistake in so doing. ( Ranson v. Kitner, 31 Ill. App. 241; Wright v. Clark, 50 Vt. 130, 28 Am. Rep. 496.)
L.L. Burtenshaw, for Respondent.
The case of Campbell v. Hedley, reported in 39 Ontario Law Rep. 528, is a case clearly in point with the case at bar.
In that case a fox of the same general class as the fox claimed by appellants escaped from a fox raiser, and was at large several days; it was killed by defendants upon the property of a third party. The plaintiff claimed the value of the fox as a living animal, its value for breeding purposes, and alternatively the value of the pelt; the judgment was for the defendants, which was affirmed on appeal.
It is the settled law of the land that a person has a right to protect his property against the unlawful attacks of dogs, cats, foxes and all animals of the classification of a base nature, and it makes no difference whether such animals are so-called domesticated, semi-domesticated or are in a wild state. (1 R. C. L., pp. 1062, 1063, note to 70 Am. Dec., p. 259, and cases cited thereunder.)
Appellants were jointly engaged under proper permit from the state in the business of raising fur-bearing animals. Under their agreement Mr. and Mrs. Davis had the care, custody and possession of one cross-bred fox named "Eva," the property of the other appellant. September 24, 1928, Eva escaped from her pen and was on a marauding foray in the village of McCall, among the chickens of Mrs. White, a near neighbor, who called to her assistance another neighbor, Dr. Jones, who shot and killed the fox, as the court found, not knowing that it had escaped from captivity or was the property of appellants. Dr. Jones refused on demand by appellants to give up possession of the pelt. Whereupon appellants unsuccessfully sued for the alleged unlawful killing of the fox and the retention of the pelt.
Appellants contend that respondent knew, or should have known, that "Eva" had escaped from captivity and was not a wild fox, and that under the circumstances he had no right to kill her. The court was justified, however, in concluding from the evidence that Dr. Jones, acting for Mrs. White, did no more than a reasonably prudent person has a right to do, under reasonably apparent necessity, in the protection of his own property or his own premises against trespassing wild animals. ( State v. Churchill, 15 Idaho 645, 16 Ann. Cas. 947, 98 Pac. 853, 19 L.R.A., N.S., 835; Helsel v. Fletcher, 98 Okl. 285, 33 A.L.R. 792, 225 P. 514; Drolet v. Armstrong, 141 Wn. 654, 252 P. 96 (the concurring opinion herein cited a statute but the majority opinion was evidently based on the common law); 3 C. J. 155, 158). The fox in question could hardly be termed a domestic animal, but the above authorities sustain the rule irrespective of the class, wild or tame.
Respondent justified retention of the pelt on the ground that when wild animals escape from their owner and return to their primitive state of natural liberty, without intent to return. (as found herein), they may be taken and possessed by anyone, citing 1 R. C. L. 1066, and cases cited. An exception to such rule supported by authority is recognized in the text, page 1067, to this effect:
"But even where the inference that escaping wild beasts have animum revertendi could probably not be indulged in fairly, as where the wild animals of a menagerie escape from their owner's immediate possession, it is hardly to be expected that the courts would hold that they would therefore belong to the first person who should subject them to his dominion. Rather it would seem that the courts would be constrained to hold that they had not so sufficiently or completely regained their original state of natural liberty as completely to destroy their status as property."
Such is the law applicable here. "Eva" had formerly escaped and been recaptured; she had been out of her pen but a short time; her owners were in pursuit, she was killed but a short distance from her pen, and the court found she belonged to appellants, hence was satisfied as to her identity (3 C. J. 21, note 73); and appellants were entitled to her pelt. The authorities cited in the above text, page 21, note 75, are distinguishable, among various grounds, on the facts, i. e., no prompt pursuit or identification. Stephens Co. v. Albers, 81 Colo. 488, 52 A.L.R. 1056, 256 P. 15, a case squarely in point, supports the conclusion herein and distinguishes Campbell v. Hedley, 39 Ont. Law Rep. 528, though it would seem that Campbell v. Hedley, supra, sustains the above exception where there is pursuit and identification even though no animum revertendi. In Hughes v. Reese, 144 Miss. 304, 109 So. 731, there was no close pursuit and only assumed identification.
The judgment is affirmed in part, reversed in part and the cause remanded for a new trial as to the value of the pelt. Costs awarded to appellants.
Lee, C.J., Varian and McNaughton, JJ., and Koelsch, D.J., concur.