On appeal from the Superior Court, Appellate Division, whose opinion is reported in 4 N.J. Super. 475.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Oliphant, J.
An action was instituted in the Morris County District Court for the value of plaintiff's fox hound which had been shot and killed by defendant's son, on her orders, while the dog was on her property. The case was tried by the court without a jury and resulted in a judgment being rendered in favor of the plaintiff in the sum of $500.
That judgment of the District Court was entered on August 4, 1948, and an appeal taken to the former Supreme Court on August 24, 1948, before the effective date of the present Constitution. An appeal was prosecuted to the Appellate Division of the Superior Court by virtue of R.S. 2:16-81,
where the judgment below was affirmed. The appeal from the Appellate Division is here under the provision contained in R.S. 2:16-82.
On September 26, 1946, defendant's thirty-three bred ewes and a ram were grazing on her farm which had been posted against hunting and trespassing. The sheep were within two weeks of lambing. Plaintiff, an employee of the State Fish and Game Commission, released his two fox hounds within a few hundred feet of defendant's lands. They picked up a cold fox scent and followed the trail into the pasture where the sheep were grazing. The dogs were barking and were heard by defendant's seventeen year old son. He notified his mother of their presence whereupon defendant told him to get his twenty-two caliber rifle and frighten the dogs away. Six shots were fired but the dogs continued to bark and run in the direction the sheep were going and were, in fact, within ten, twenty or thirty feet of some of them when defendant instructed her son to shoot them. One of the dogs was shot and killed, the other ran away. The evidence tended to show that the dog killed was deer and stock proof, but there is nothing to indicate the defendant or her son had knowledge of that fact.
The findings in the District Court were that the dog in question "was not in the act of chasing or worrying the defendant's sheep but that Cracker (the dog's name) was actually following the scent and track of a fox through the property of the defendant without regard for the presence of sheep or other animals," and that "Cracker had no intention to chase, worry or harm the defendant's sheep." The court found that the sheep were running away from the dogs, not that the dogs were chasing them.
The defendant, in the District Court relied upon the common law rule that one may kill a dog in defense of his property where circumstances justify a reasonable belief that such action is necessary to protect his property. This defense was rejected by the trial court because the dog was stock proof, it was not chasing or worrying the sheep, the defendant stated the dog had no right to be on her property, she did
not allow dogs on her property and the admitted inexperience of the defendant and her son concerning dogs, and based its verdict on the non-applicability of R.S. 4:19-9, which provided "a person may humanely destroy a dog in self defense, or which is found chasing, worrying, wounding or destroying any sheep, lambs, poultry or domestic animal," on his factual finding that it was established by the greater weight of the evidence that the dog in question was not actually in the act of chasing or worrying the sheep, but was actually in the act of following the scent and track of a fox.
"Worry" as used in statutes providing that one may destroy a dog worrying sheep means "to run after; to chase; to bark at." Such is the meaning given to the word by courts of cattle raising states such as Colorado and Wisconsin. In re: Failing v. People, 98 P. 2d 865 (Colo.); Bass v. Nofsinger, 269 N.W. 303 (Wis.); both cases citing 8 Words and Phrases, 1 st Series, p. 7526; 45 Words and Phrases (Perm. Ed.) p. 541.
The Appellate Division, conceiving the issue to be not whether the defendant was absolved from blame by reason of R.S. 4:19-9 but whether or not the defendant had reasonable grounds to believe that shooting the dog was necessary to protect the sheep, made a new finding of fact under Rule 4:2-6 and affirmed the judgment below on the ground the defendant did not have reasonable ground for such belief. It came to the same conclusion factually and legally as the District Court, the former by applying the statute, the latter by adapting the common law doctrine. The Appellate Division had no authority to make a new finding of fact. The rule under which it acted is not applicable to those cases wherein a judgment was entered previous to September 15, 1948, the effective date of the new Constitution. The case of Lutz v. Ryno, 1 N.J. 363, 365, lays down the rule, stated many times previously, that "Under the provisions of the District Court ...