Buck v. Moore

Dykman, J.:

The plaintiff in this action was the owner of a small dog. The defendant was the owner of a large dog. While the defendant’s dog was following her along the street, he went into- the yard of the plaintiff and seized his dog and- killed it. The action is for damage resulting from the death of the plaintiff’s dog. , A judgment was obtained by the plaintiff in the court of a justice of the peace where the action was commenced and tried, which was reversed by the county court on appeal, and now the plaintiff has appealed to this court.

It must be noticed in the outset that the action is not for trespass on the plaintiff’s close, aggravated by the mischief done thereon, but is simply for the damage sustained by the death of the dog. The case, therefore, seems to fall within rule three of Moak’s Underhill on Torts. “ No person is legally responsible for any act or omission not attributable to active or passive volition on his part.” In other language, no person is responsible for an involuntary injury. If, while following its owner along a highway, a dog discovers game and follows’ it, the owner is not liable. By the common law the owner of a dog that worried and killed sheep was not responsible for the damage done, and it required a statute in our State to create such liability. The reason of this rule was that the killing and worrying of sheep could not be anticipated or expected to result from a dog running at large. That rule applies here. The defendant could not know or believe that her dog would kill or injure the dog of this plaintiff, simply because she permitted her dog to follow her along the street.

The judgment of the county court should be affirmed, with costs.

Barnard, P. J., concurred in the result.

Judgment of County Court affirmed, with costs.