LIVERPOOL AND LONDON AND GLOBE INSURANCE COMPANY v. COCHRAN.

[77 Mississippi, 348.]

INSURANCE, FIRE-MISSTATEMENT AS TO OWNERSHIP.—If the owner of an undivided one-half interest in a building states in his written application for fire insurance that he is the sole and unconditional owner of the building, the insurance is void, although such applicant is sincere in making such misstate ment, as his co-owner had verbally promised to convey to him upon the payment of a certain sum.

Miller & Baskin, for the appellant.

Cochran & Bozeman, for the appellee.

852 WOODS, C. J. That the insured were not the uncondi tional and sole owners of the property when the application for insurance was made, and the policy of insurance was issued, is perfectly plain on the evidence offered by the plaintiff himself. They were the owners of an undivided half interest in the property, and they had neither the legal nor equitable title to the other undivided half interest.

Whatever opinion the person who made the application may have sincerely entertained, the verbal agreement, whereby the owners of the other undivided half interest undertook to convey their interest to their other two co-owners on repayment by the latter to the former of whatever sums had been paid by the former to their vendors, conferred no title, legal or equi table, the conditional agreement never having been executed by the parties to it beyond the mere cessation of the co-owners to use and occupy the property.

While it is true that in construing contracts of this character, courts will not scrutinize with critical nicety the mere question of title, yet where it clearly and indisputably appears that the insured owned only an undivided half interest in the property sought to be insured, while in their application for insurance it was stated by them that they were the sole and unconditional owners of the property, courts will not, and cannot, shut their eyes to so glaring a misstatement of an essential fact, however sincerely made.

Entertaining this opinion on this point, we think it unnec essary to go further into the case. The verdict should have been for the defendants, as no other could have properly been allowed to stand on the transcript before us. The court, there

fore, might and should have given a peremptory charge for the defendant, if the same had been asked.

Reversed and remanded.

sole, must be completely vested in the insured, not contingent or INSURANCE, FIRE-AN INTEREST, to be unconditional and conditional, nor for others, nor for life only, nor in common: Hartford Fire Ins. Co. v. Keating, 86 Md. 130, 63 Am. St. Rep. 499.

HODGES V. CAUSEY.

[77 Mississippi, 353.]

DOGS TRESPASSING RIGHT TO KILL-The fact that a dog is trespassing does not justify his wanton or malicious de struction, even after his owner has had notice to keep him off the premises.

DOGS RECOVERY FOR KILLING-PROOF OF VALUE. The owner of a dog wrongfully killed may maintain an action to recover therefor, and is not compelled to prove his market value. If the dog has no market value, his owner may prove and recover his special value to him by showing the pedigree, characteristics, and qualities of the dog, and then proving by witnesses who know these things their opinion of his value.

W. S. and W. R. Chapman, for the appellant.

F. Johnston and T. R. Baird, for the appellee.

850 WHITFIELD, J. It may be that "property in dogs is imperfect or qualified nature," as held in Sentell v. New Orleans etc. R. R. Co., 166 U. S. 698, Ward v. State, 48 Ala. 161, 17 Am. Rep. 31, Wilton v. Weston, 48 Conn. 325, and Carthage v. Rhodes, 101 Mo. 175. And it is doubtless true that much of the conflict of decision touching this subject is due to the varying statutes of different states as regards their being the subject of larceny, etc. But it is very correctly said. in the learned note to Hamby v. Samson, 67 Am. St. Rep. 297, that "in the United States there has been a quite noticeable tendency in legislation and judicial decisions to recognize a complete property in dogs." When the right to kill a trespassing dog is in question, doubtless the difference in nature and instincts between the dog and ordinary domestic animals, as the horse or cow, may properly enter into its solution. It is said in the exhaustive note to this same case of Hamby v. Samson, 40 L. R. Ann. 510, that "it is generally held that a

merely trespassing dog cannot be killed," and the authorities pro and con are cited. In that note, and also in the note to Tonawanda R. R. Co. v. Munger, 49 357 Am. Dec. 260, illustrations are given of the conditions under which it would be lawful to kill a trespassing dog: Sheepkilling dogs may be killed; dogs destroying deer, fowls, or other animals, where necessary to their preservation; howling dogs on one's premises may be killed, etc. But it is said the dog must be killed at the time, and not on account of past damage done by him: Tonawanda R. R. Co. v. Munger, 49 Am. Dec. 260, and authorities. The true rule is thus stated in the note to Hamby v. Samson, 67 Am. St. Rep. 294, 295: "But one is never justified in going to excessive lengths in the defense of himself or his property from assault or injury. The method of defense adopted must bear a certain relation to the character or seriousness of the threatened injury. The fact that a dog is trespassing does not justify his wanton or malicious destruction." And again: "In any case the question whether the defendant was justified in killing or injuring the plaintiff's dog should be submitted to the jury, to be decided from a consideration of the peculiar facts and circumstances of the case." The court virtually told the jury, in its modifications of plaintiff's instructions, that, "if they believed defendant had warned plaintiff not to let his dogs run in his field," defendant was not liable. This was error. Notice to keep his dogs out was one fact, but not the only fact, to be considered. Notice of that sort is not conclusive: See authorities collected in paragraph 3, Tonawanda R. R. Co. v. Munger, 49 Am. Dec. 259. When it is borne in mind of what great value some dogs are, the reasonableness of the general rule against the right to kill a mere trespassing dog is apparent: See Mullaly v. People, 86 N. Y. 365, and note; 40 L. R. Ann. 510. Here, at the time this English deerhound was killed, she was running through the corn rows in November, when the corn was thoroughly matured. She had done at that time no damage to the cotton. The defendant says he killed her to prevent her doing damage by knocking out cotton from the stalks. The jury should not have been told that notice was a perfect defense. All the circumstances in evidence were before them, and the reasonableness of the alleged necessity of 358 killing the dog to save property should have been left to them, as a question of fact, under proper instructions as to the law.

The court also erred in its instruction as to the necessity of proving market value. The doctrine supported by reason and the authorities is that you may prove the market value if the dog has any, and, if not, then his "special or pecuniary value to his owner, to be ascertained by reference to his usefulness and services": Heiligmann v. Rose, 81 Tex. 222, 26 Am. St. Rep. 804. And it is perfectly competent to prove the pedigree, characteristics, and qualities of the dog, and then prove, by witnesses who know these things, their opinions as to the value: Bowers v. Horen, 93 Mich. 420, 32 Am. St. Rep. 513. And on both these propositions see, specially, the notes to Hamby v. Samson, 67 Am. St. Rep. 292, 293, with the authorities, and the other in 40 L. R. Ann. 515, 518 (8), et seq.

Judgment reversed, verdict set aside, and cause remanded for a new trial.

DOGS-RECOVERY FOR KILLING.-The basis of recovery for killing a dog may be either the market value, if the animal has any, or some special or pecuniary value to the owner that may be ascertained by reference to the usefulness or services of the dog. Those acquainted with the characteristics and qualities of a dog may testify as to his value: See the monographic note to Hamby v. Samson, 67 Am. St. Rep. 292, 293; and evidence of his pedigree is competent to prove his value: Citizens' Rapid Transit Co. v. Dew, 100 Tenn. 317, 66 Am. St. Rep. 754.

THE FACT THAT A DOG IS TRESPASSING does not justify his wanton or malicious killing: See the monographic note to Hamby v. Samson, 67 Am. St. Rep. 294.

JAMES v. STATE.

[77 Mississippi, 370.]

BURGLARY-LARCENY—AVERMENT OF OWNERSHIP.— Under an indictment charging burglary with larceny, the averment of ownership in the part of the indictment charging the larceny is surplusage after conviction of the burglary, and may be rejected.

BURGLARY-PROOF

OF OWNERSHIP AND CORPORATE EXISTENCE.-Under an indictment for burglary, it is necessary to aver and prove the ownership of the premises burglarized. If it is averred to be the property of a corporation, as a railway car, the corporate existence must be proved.

CRIMINAL LAW-APPELLATE PRACTICE.-A judgment of conviction cannot be reversed in the supreme court, for errors not specifically objected to in the trial court.

Indictment charging the breaking and entering of a railway car, the property of the Illinois Central Railroad Company, ■ corporation, with intent to steal the personal property of such corporation, and further charging the stealing from such car of a number of pairs of shoes, the property of the HamiltonBrown Shoe Company, a corporation. Judgment of conviction and the defendants appealed.

J. H. Wynn and C. J. Jones, for the appellants.

W. N. Nash, attorney general, for the appellee.

871 WHITFIELD, J. We have seldom had before us a more unintelligible record. 372 So far as Edward Clark is concerned, it is sufficient to say that the conviction is utterly unwarranted by the testimony. As to Allen James, we notice the contentions of learned counsel for the appellant, as follows: When the indictment charges burglary with larceny, the averment of ownership in the part charging the larceny is surplusage, and may be rejected. The precise point is decided in Brown v. State, 72 Miss. 990, and also in Harris v. State, 61 Miss. 304. The principle is stated in Tyler v. State, 69 Miss. 397: "Where the entire averment of which the descriptive matter is a part is surplusage, it may be rejected, and the descriptive averment need not be proved. But it must be proved as charged wherever, if the person, thing, act, place, or time to which it refers was struck from the indictment, no offense would be charged": 1 Bishop's New Criminal Procedure, sec. 485. Of course, we are speaking of a case where, as here, the general verdict of guilty as charged is a conviction of the principal offense alone, as held in Roberts v. State, 55 Miss. 421, 424. If the averment that the shoes were the property of the Hamilton-Brown Shoe Company were stricken out, the burglary with intent to steal would be well charged: Brown v. State, 72 Miss. 990. The cases of Mobley v. State, 46 Miss. 501 (attempt to commit a rape), John v. State, 24 Miss. 575 (murder), Dick v. State, 30 Miss. 631 (attempt to commit a rape), and Tyler v. State, 69 Miss. 395 (unlawful sale of intoxicants), are not in point. It is certainly settled that it is necessary to allege the ownership of the building burglarized, and to prove it as laid: 3 Ency. of Pl. & Pr. 758, notes 3, 4; 2 Bishop's New Criminal Procedure, sec. 137. And when a corporation is alleged to be the owner, there must be proof of the existence of the corporation: 2 Bishop's New Criminal Procedure, sec. 138.