UNCLAIMED DOG

Wanganui Chronicle, Volume LXXXII, Issue 19478, 23 December 1925, Page 15

UNCLAIMED DOG

THAT WORRIED CATTLE OWNER’S RESPONSILITY DEFINED IN IMPORTANT JUDGMENT A written judgment has been given by Mr J. S. Barton, S.M., in connection with a case recently heard at Patea. The judgment is a very important one, and of particular interest to farmers who do not keep their dogs always on the chain when not working them. The parties to the case were F. G. Sherwood (judgment creditor), William Young /judgment debtor), and Joseph Francis Bourke (sub-debtor). Air T. E. Roberts appeared for the judgment creditor and debtor and Air F. AlcKenna for the subdebtor. Air Barton’s judgment is as follows:

This action is a sequel to attachment proceedings, taken by the judgment creditor to attach a dpbt due to the judgment debtor by the sub-debtor. On the appearance of the parties on the attachment proceedings the sub-debtor | admitted the debt alleged due to the judgment debtor, but pleaded that he had claims against the judgment debtor that would extinguish that debt. The judgment creditor was then ordered by the Court under Section 136 of the Alagistrate’s Court Act, 1908, to sue the sub-debtor ,and he has done so by these proceedings, the sub-debtor filing a claim by way of set-off. At the hearing, the various Readings in the sub-debtor ’s claim of set-off became the substantive matter before the Court and were, with one exception, disposed of by mo in a series of small findings of fact and law at the close of the hearing. The exception was the first heading in the statement of set-off worded as follows: “The sub-debtor counter-claims from the judgment debtor the sum of £lO, being the value of one cow worried and killed on or about Alarch 16, 1924, by the dog of Williom Young, the judgment debtor, and further claims the sum of £5, being the amount of loss sustained by the sub-debtor through the judgment debtor’s dog worrying one cow and causing the said cow to slip her calf, whereby the said cow was | rendered unprofitable to the defendI ant. ’ ’ ! The following relevant facts were i proved at the hearing:—On the day in i question the sub-debtor Bourke had some cows on his farm at Alton and ! they were more or less heavy in calf. 1 He had a cattle dog which he used in i his work on the farm, but on this day ihe had his dog tied up. He whistled I on the occasion in question intending j thereby io call the cows, but the sub- | debtor’s dog happened to be there at (the time and it answered the whistle iand began to chase the cows. Bourke

. tried to whistle the dog off, but the dog did not obey the signals and continued to chase the cows, which became very frightened. One cow tried to jump a fence and so injured herself that she ! died; another slipped her calf a week I later. I find that the dog did not chase i the cows till the whistling signal was | given to the cows, and he then did so i evidently mistaking it as a signal to work the cows. These are the facts on which the subdebtor relies, and he invokes Section 27 of the Dogs Registration Act, 1908, in I support of his claims. That section is las follows:—“The owner of every dog I shall be liable in damages for injury ! done by his dog, and it shall not be ■ necessary for the party seeking damI ages to show a previous mischievous ' propensity in such dog. or the owner’s 1 knowledge of such mischievous propens- ' ity, or that the injury was attributI able to neglect on the part of the owner of the dog.” I do not mind admitting that I have found the application of the law to these facts a very difficult task. At the hearing I expressed the view, then held by me, that the owner of the dog would not be liable for damage resulting, not from a savage or mischievous propensity in the dog, but from a possible

misunderstanding of the whistle and a ; consequent attempt to work the cows. ' I was doubtful on the point and reservled my decision accordingly. I have ; since been carefully into the law on the , point and can find no escape from the i position that Section 27 places an absoi lute liability on the owner of a dog for ■ all damages for injury done by his dog. j The Court wjll not enquire whether the I dog act is traceable to a savage or i other exercise of the hunting instinct. 'or to sportiveness or to an unskilful i exercise of his trained habits in work--1 ing cattle or sheep. The owner of the I dog is fixed with knowledge of the ■dog’s mischievous propensities and lets | it loose at his peril, for he is liable for , the consequences of its actions without • proof of any negligence on his part. ■ The only question before the Court is: Was the injury complained of done by this dog? The question of remoteness of damage enters into this question in determining the existence of the cause of the action. Now, the first act complained of is that the dog chased a cow that was in | calf; that she ran from the dog, tried i to jump a fence and was so injured in i the attempt that she died. Is that the ■ natural and probable result of leaving i a dog at large in this district? I ask ’ myself: What damage might be done ! by a dog getting amongst dairy cows? I And I supply the answer: Firstly, ! direct injury by biting and worrying ' and secondly indirect injury due to the ■ cows becoming frightened and running | unduly or running into fences or other i obstacles. I think that any of those I results might reasonably be foreseen Ibv a prudent man whose mind adI verted to the subject. In this case the I cow jumped ami was injured in the actual ’chase, and I hold therefore that : the death of the cow, which followed thereon, was caused by the dog. In the case of the second cow, she was chased and a week later she slipped her calf. Here there is quite a probability that this result is traceable to the dog’s action, but in my opinion the evidence tendered stops short of proof. I therefore hold that the sub-debtor has proved a set-off against the judgment debtor in respect of his claim of £lO for ‘.the cow killed. 1 place on record also * that certain other claims by way of set-off, announced orally by me at the dose of the hearing, are established. Thev are:—Claim for rent £l3, for i grazing £1 12s 6d. In all therefore the

sub-debtor proves claims against the judgment debtor amounting to £24 12s 6d. The present plaintiff is, by Section 136 of the Magistrate’s Court Act, 190.8, limited in his present claim to the amount of his judgment debt and costs thereon, viz., £2B 4s 6d in all. The sub-debtor proves a set-off of £24 12s (id and the present plaintiff is therefore by his action entitled to judgment against the sub-debtor, J. I’. Bourke, for the difference, viz., £3 12s, and judgment is hereby given accordingly. The total debt admittedly due by Bourke to the original judgment debtor, Young, is, however, £36, and the attachment proceedings that originate this present action sought to attach the whole of that sum. There remains of the £36, the sum of £7 15s 6d over and above the limit set by Section 136 of Al agist rate’s Court Act, 1908, on the present right to sue. I am of opinion that the original attachment proceedings are still alive in relation to that sum of £7 15s 6d, as Section 136 lays down a procedure in relation to the sum of £2B 4s 6d only. It is therefore ordered by virture of Section .135 of the said Act that execution issue forthwith to levy that balance of £7 15s 6d due by sub-debtor to judgment debtor and not disputed. Costs are allowed on the judgment for £3 12s, being Court costs 40s, solicitor’s fees on examination of a j idgment debtor 21s. Ort the attachmen ■ proceedings, solicitor ’r fee 10s 6d ar j all disbursements, to be fixed by • be Clerk of the Court.