Case XV: Liability for Damage Done by One's Animal

Is a person answerable in conscience, or in foro interno, for damage done by his animal? The case is this: A. had a dog that repeatedly chased and killed chickens belonging to B. B. had complained to A. about his dog, but, as it seemed, to very little purpose, because the dog continued to injure and destroy B.’s property. Finally B. killed the dog. Now, the dog was a valuable animal, worth many times more than the chickens, and A. is at present endeavoring to recover damages in the courts. Is A. justified in bringing suit to recover the value of the dog, or was B. justified in killing it? Which one of them ought to stand the loss of the chickens?

Answer.—In answering the foregoing questions, the confessor proceeds in quite a different way from the judge of a court of law, because, there is a very material difference between the forum internum and the forum externum, i. e., between the court of conscience and the civil law court. The decision in a case given by the confessor will often differ very materially from the decision given by a judge in a court of law. In the forum internum, or court of conscience, in a case like this one, it is the culpa theologica that counts; in the civil courts, it is the culpa juridica, or the omission of the care which the law requires in the use of property so as not to injure others. When the confessor estimates a man’s responsibility for injury done by the man’s animal, his first concern is to ascertain whether the damage done by the animal is imputable to its owner as a sin, that is a culpa theologica. If the damage done was the result of carelessness, then was the carelessness sinful?

If there was no sin, then as far as the court of conscience, the forum internum, is concerned, there is no restitution to be made. The civil court, on the contrary, is concerned about the culpa juridica, that is to say, the civil judge is not concerned about the sinfulness of the accused’s action of omission, but only about the fact of the omission of that care which the law requires of citizens in the use of their property so as not to injure others in person or property. Whether the omission of the proper care was sinful or not, is no concern of the civil court. The court endeavors to ascertain the culpa juridica, that is, in the present case, whether A. failed to take the care that the law demands that he take in the use of his property so as not to injure others. Whether A. committed a sin in failing to confine his dog is of no consequence in the civil court, provided it can be shown that he failed in the care required by the law. It is the only thing of consequence in the forum externum. A.’s carelessness in keeping and using his dog may have been wholly without sin; in fact there may have been no real carelessness at all, but only what is called constructive carelessness, nevertheless the court will hold him liable. The general rule of the law is that a person shall so use his property as not to injure another in person or property. Where a person uses his property so as to injure others, even though he be not guilty of any sin or criminal carelessness in such use, still if he fails to take the amount of care that the law says he must take, then he is guilty of constructive carelessness, and is liable. It is irrelevant that he did not intend to do the injury, that he did not actually foresee it, and was not guilty of sinful or criminal negligence in not foreseeing it; the fact remains that the injury was inflicted because the amount of care that the law ordains that people must and shall take in the use of their property, was not taken, and therefore A. is liable.

If a case like the present one, therefore, is being tried in foro interno by the confessor, and no sin attaches to A.’s neglect to confine his dog, then no reparation can be required of A. in foro conscientiae, ante sententiam judicis; whilst, if this same case is argued in the civil court, the fact that injury resulted from the use which A. made of his dog will be prima facie evidence that A. did not employ such care as the law directs, and the court will so find, until proven otherwise.

This rule of the law, although it may work a hardship in some particular instance, is just and wise and reasonable, as regards the whole community, because it compels persons owning property to use it in a reasonable and just manner so as not to injure others, and were it not for this disposition of the law, a great deal of injury would be done to life and property through carelessness and neglect, and the social order would be very considerably disturbed. Reparation imposed by the law for injury done to others in the use of one’s property, is just and reasonable and must be made.

According to the statute law, a dog is a tame animal and therefore the owner must know of his vicious habits to be held liable for damages done by him. But where the dog was upon the premises of another and did injury, the owner was held liable by the court, although without knowledge of the dog’s bad habits. In case a dog kills or wounds sheep or lambs, the statute law makes the owner of the dog liable for the value of the sheep killed or wounded by the dog, whether the owner. knew of its vicious habits or not, even though the sheep be at the time trespassing. This refers of course only to the killing of sheep or lambs. The dog’s propensity to chase and kill such animals is so universally well known, that the law supposes every owner of a dog to have knowledge of it and holds him liable for any injury resulting therefrom. In cases where other property is injured by a dog, knowledge of the dog’s vicious habit must be proven against its owner, before he can be held liable. The liability of the owner or keeper of any animal for an injury committed by it is founded upon negligence. Any person is justified by the law in killing another’s dog, where the dog is dangerous or ugly, and his owner knew it, and the dog is found running at large or has been bitten by a mad dog; when it attacks one’s domestic animals on his land, or when it attacks persons or in any way becomes a nuisance; when in the act of chasing, worrying or wounding sheep, unless such chasing, etc., be done by the direction or permission of the owner of the sheep, or by his servant. But no one has a right to shoot a dog because he has been trespassing on his land, although he may have put up a sign or notice on his land that he would do so.

The confessor, therefore, if we may be allowed to repeat, distinguishes between a culpa theologica and a culpa juridica. Culpa theologica is a real sin, either mortal or venial; culpa juridica is the omission of the care which the law requires of persons in the use of their property so as not to injure others, whether the omission be sinful or not. Very often such omission will be sinful: then it becomes theologica; but it will also often happen where it is not sinful: then the theologians call it culpa mere juridica. The principle insisted on in moral theology is this: “For an injurious action to induce an obligation of restitution, it is required that it be theologically culpable; for no one is bound in conscience to repair harm unless it was inflicted culpably in conscience.” No one can be held liable for the results of involuntary actions. Now only voluntary actions can be sinful. If an action is not sinful, although injurious, then it is not voluntary qua injurious, and one can not be held answerable for the injury. The injury done may be voluntaria in se or else voluntaria in causa, or altogether involuntary. A person may intend the injury resulting from his action of omission or he may not intend it, but still foresee it as necessarily resulting from his action or omission, which action or omission is done for some other purpose and not to cause injury. In this latter case, if the injury is foreseen and no sufficient cause is present to justify its being allowed to happen, it is imputable as sin.

Now let us apply all this to the present case. It may be said, then, that it is lawful to kill another’s dog if he is injuring one’s property, but only on certain conditions. These conditions are: (1) Killing the dog must be the only way open to us to stop the injury. If the injury may be prevented by notifying the owner of the dog, etc., then in conscience it is not lawful to kill it; (2) the injury done by the dog must be a grave damnum; (3) the primary purpose of the killing must be the protection of one’s property, and not the injury done to another. These conditions are required in foro interno; for the forum externum all that is required is proof that the care required by the law was or was not taken in using one’s property.

The confessor must determine whether A. was guilty of sinful negligence in the keeping and using of his dog. According to the statute law he is liable for carelessness and may be compelled to repair the injury resulting from such carelessness. The dog in killing B.’s chickens becomes a nuisance, and may be killed and damages recovered from A.

But before the matter is brought into court, what is A.’s duty? It will depend on the nature of A.’s carelessness in keeping his dog. If A. was guilty of sin in being careless, then he is responsible in conscience for the injury done by his dog. A. had been notified of his dog’s vicious habits and should have so guarded that he could not injure another’s property. In neglecting to do so, he evidently failed in his duty and committed a sin, and must now make reparation.

As B. complained to A. about his animal to no purpose, and if an appeal to the officers of the law would have done no good, then if the injury that was being done by the dog was a grave damnum, B. was justified in conscience in killing the dog to protect his property. Vim vi repellere licet is an axiom of the law. Of course, if there had been any other less injurious way or means of preventing the injury to A.’s property, B. would have been obliged in conscience to adopt it. But under the circumstances there does not seen to have been any other way of stopping the damage. B. has a right to insist that A. shall so use his property as not to injure him, and he has a right to recover damages for the injury done.

He has a right also to resist the suit brought by A. to recover the value of his dog. At the same time, if the court should fine him for killing the dog, he will be obliged in conscience to pay, because the court is a competent authority to determine the question of the justifiability of the killing of A.’s dog.

In regard to A., he is bound in conscience to make restitution for the injury done by his animal, because he was evidently guilty of criminal negligence in the way he kept his dog. But if as a matter of fact there was no sin in his carelessness, then, ante sententiam judicis, he is not bound to make restitution.