September 10, 2015 § 9 Comments
In April, 1940, in Leflore County, C.G. Hull shot and killed a dog belonging to W.W. Scruggs. By Hull’s account, the errant canine had been misbehaving on his land for several weeks, howling at night, chasing and harassing Hull’s fowl, growling at children, and — worst of all — sucking the eggs laid by Hull’s chickens and turkeys. That combination of malfeasance earned Fido the Hull death sentence.
Scruggs saw his animal differently. To Scruggs, the dog was a harmless, loveable family pet who wouldn’t hurt a flea. Even if the poor creature wandered over to Hull’s property every now and then, he was not guilty of any acts such that he would need killin’. Scruggs sued Hull in Circuit Court, and, based on a peremptory instruction, the jury awarded a verdict in his favor against Hull, who appealed.
In the case of Hull v. Scruggs, 191 Miss. 66, 2 So.2d 543 (1941), the MSSC reversed. Justice Griffith wrote the following for the court:
It is a fact of common knowledge that when a dog has once acquired the habit of egg-sucking there is no available way by which he may be broken of it, and that there is no calculable limit to his appetite in the indulgence of the habitual propensity. And generally he has a sufficient degree of intelligence that he will commit the offense, and return to it upon every clear opportunity, in such a stealthy way that he can seldom be caught in the act itself.
When a dog of that character has for three weeks taken up his abode upon the premises of one not his owner, or else from time to time during the course of such a period and from day to day as well as often during the night, has returned to and entered upon the premises of one not his owner, and has destroyed and continued to destroy all the eggs of the fowls kept by the owner of the premises, what shall the victimized owner of the premises do? Nobody will contend that he shall be obliged to forego the privilege to own and keep fowls and to obtain and have the eggs which they lay; nor will it be contended that he is obliged to build extra high fences, so high as to keep out the trespassing dog, even if fences could be so built. The premises and its privileges belong to the owner thereof, not to the dog.
He must then, as the most that could be required of him, take one or the other, and when necessary all, of the three following courses: (1) He must use reasonable efforts to drive the dog away and in such appropriate manner as will probably cause him to stay away; or (2) he must endeavor to catch the dog and confine him to be dealt with in a manner which we do not enter upon because not here before us; or (3) he must make reasonable efforts to ascertain and notify the owner of the dog, so that the latter may have opportunity to take the necessary precautions by which to stop the depredations. It is undisputed in this record that the owner of the premises resorted in a reasonably diligent manner and for a sufficient length of time to each and all of the three foregoing courses of action, but his reasonable efforts in that pursuit resulted, every one of them, in failure.
What else was there reasonably left but to kill the animal? There was nothing else; and we reject the contention, which seems to be the main ground taken by appellee, that admitting all that has been said, the dog could not lawfully be killed except while in the actual commission of the offense. This is a doctrine which applies in many if not most cases, but is not available under facts such as presented by this record. After such a period of habitual depredation as shown in this case, and having taken the alternative steps aforementioned, the owner of the premises is not required to wait and watch with a gun until he can catch the predatory dog in the very act. Such a dog would be far more watchful than would the watcher himself, and the depredation would not occur again until the watcher had given up his post and had gone about some other task, but it would then recur, and how soon would be a mere matter of opportunity.
There is actually a West Key Number, Evidence 157k13, “Phenomena of Animal and Vegetable Life,” that incorporates the heart of this case: “It is common knowledge that when a dog has acquired habit of sucking eggs there is no available way by which he may be broken of it, and no calculable limit to his appetite in that regard.”
You can add to the already-imposing list of things of which Mississippi judges may take judicial notice the fact that “you can’t break a dog of sucking eggs.”
The concept behind this holding is enshrined in Mississippi folk wisdom, and is familiar to anyone who grew up in a small town or on a farm. It’s only fitting that it should be imbedded in our jurisprudence as well. I am sure many of you will find imaginative ways to incorporate this case into some of your chancery court arguments.