We promised in our earlier post on Mann v. Calumet City, No. 09-1681 (Dec. 7, 2009) that we were going to read the egg-sucking dog case, Hull v. Scruggs, 2 So.2d 543 (Miss. 1941). We have, and present it below in its full glory.
The rule of law in the case was summarized by Johnny Cash:
Dirty Old Egg-Sucking Dog
Well he’s not very handsome to look at
Oh he’s shaggy and he eats like a hog
And he’s always killin’ my chickens
That dirty old egg-suckin’ dog
Egg-suckin’ dog
I’m gonna stomp your head in the ground
If you don’t stay out of my hen house
You dirty old egg-suckin’ hound
Now if he don’t stop eatin’ my eggs up
Though I’m not a real bad guy
I’m going to get my rifle and send him
To that great chicken house in the sky
Egg-suckin’ dog
You’re always a-hangin’ around
But you’d better stay out of my hen house
You dirty old egg-suckin’ hound
Here’s the long version, courtesy of the Mississippi Supreme Court:
Griffith, J., delivered the opinion of the court.
On April 4,1940, appellant killed a dog then on his premises, the dog being theproperty of appellee, as it was afterwards learned. In an actionagainst appellant, the defendant in the trial court, the jury, on whatamounted in practical effect to peremptory instructions for plaintiff,returned a verdict in favor of the plaintiff, and the defendant hasappealed.
The ownership and the killing are admitted, and indefense appellant plead justification. Plaintiff resided in the City ofGreenwood and defendant’s home was about a mile away and near theoutside of the city limits. About three weeks before the dateaforementioned, according to the evidence introduced in behalf ofdefendant, the dog took up his abode on the premises around defendant’shome, and made himself a nuisance by howling at night, chasing theturkeys and guineas owned by the defendant and by demeaning himself soas to frighten the children and their nurses. The evidence onplaintiff’s part was to the effect that the dog was not absent fromplaintiff’s premises in such manner as to be constantly or continuouslysomewhere else, although it was admitted by plaintiff that the dog wasabsent at recurrent times and hours.
In this situation we layaside as unnecessary, but not because unimportant, all the abovementioned complaints as regards the conduct of the dog, and lay asidealso the assertion that during all the three weeks the dog wasconstantly or continuously on the premises of the defendant, because asto complete continuity there is a dispute of fact; and we proceed to adetermination of the controversy upon undisputed evidence of facts andcircumstances which conclusively disclose that, throughout the periodof three weeks aforesaid, the dog sucked all the eggs which were laidby the turkeys and guineas on defendant’s premises and that hispresence there was of sufficient frequency or continuity, both day andnight, that none of the eggs were left until after the dog was killed.
Itis a fact of common knowledge that when a dog has once acquired thehabit of egg-sucking there is no available way by which he may bebroken of it, and that there is no calculable limit to his appetite inthe indulgence of the habitual propensity. And generally he has asufficient degree of intelligence that he will commit the offense, andreturn to it upon every clear opportunity, in such a stealthy way thathe can seldom be caught in the act itself.
When a dog of thatcharacter has for three weeks taken up his abode upon the premises ofone not his owner, or else from time to time during the course of sucha period and from day to day as well as often during the night, hasreturned to and entered upon the premises of one not his owner, and hasdestroyed and continued to destroy all the eggs of the fowls kept bythe owner of the premises, what shall the victimized owner of thepremises do? Nobody will contend that he shall be obliged to forego theprivilege to own and keep fowls and to obtain and have the eggs whichthey lay; nor will it be contended that he is obliged to build extrahigh fences, so high as to keep out the trespassing dog, even if fencescould be so built. The premises and its privileges belong to the ownerthereof, not to the dog.
He must then, as the most that could berequired of him, take one or the other, and when necessary all, of thethree following courses: (1) He must use reasonable efforts to drivethe dog away and in such appropriate manner as will probably cause himto stay away; or (2) he must endeavor to catch the dog and confine himto be dealt with in a manner which we do not enter upon because nothere before us; or (3) he must make reasonable efforts to ascertain andnotify the owner of the dog, so that the latter may have opportunity totake the necessary precautions by which to stop the depredations. Itis undisputed in this record that the owner of the premises resorted ina reasonably diligent manner and for a sufficient length of time toeach and all of the three foregoing courses of action, but hisreasonable efforts in that pursuit resulted, every one of them, infailure.
What else was there reasonably left but to kill theanimal? There was nothing else; and we reject the contention, whichseems to be the main ground taken by appellee, that admitting all thathas been said, the dog could not lawfully be killed except while in theactual commission of the offense. This is a doctrine which ap-plies inmany if not most cases, but is not available under facts such aspresented by this record. After such a period of habitual depredationsas shown in this case, and having taken the alternative stepsaforementioned, the owner of the premises is not required to wait andwatch 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 givenup his post and had gone about some other task, but it would thenrecur, and how soon would be a mere matter of opportunity.
Reversed and judgment here for appellant.
We have always wanted to write a brief that starts off like the brief filed on behalf of Mr. Hull:
It is a matter of common knowledge that dogs, even more so than humanbeings, will do again that which they are in the habit of doing. It isa matter of common knowledge that a dog who sucked eggs yesterday willsuck eggs today and tomorrow and the next day, and so on. Likewise, adog that has habitually howled will howl again, or a dog that chasesguineas or turkeys will continue to do so.
We can only dream.