PET BIRDS DESTROYED

Bay of Plenty Beacon, Volume 2, Issue 224, 11 October 1940, Page 5

PET BIRDS DESTROYED

OWNER'S CLAIM SUCCEEDS jVIATATA INCIDENT RELATED IN COURT An unusual case was heard by Mr E. L. Walton, S.M., in the Whakatane Magistrate's Court when Rex Ron don (Mr B. S ( -Barry), of Matata, proceededi against Albert - George Penny (Mr R. F. Smith), also of Matata, for the recovery of £5, the value of two pet Chinese Silver Pheasants, stated to have been ■shot by defen.diant. The defence held that the birds, which were -destroyed while 'on Penny's pro perty, had attacked his infant daughter and had been shot as a result. Evidence foir the plaintiff was to the effect that the pheasants had been accustomed | "to playing with children .and! "had never been known to attack "them. Mr Barry said he hacl been instructed to appear for plaintiff, and -stated that the claim represented •the value of two Silver Chinese '[Pheasants, bred by and belonging to the plaintiff, who resided at Mat«ata. The birds, were domesticated and were not confined, playing about the house and neighbouring properties. Defendant had shot them with the allegation that one <liad attacked a child. Defendant, had no right to shoot the birds and It was not necessary to go to that length as the pheasants coulcl have been chased away, or, alternatively, could have notified the 'Owner. Another aspect was .that the 'pheasants were protected birds and <could be shot only by a person holdiing a licence. Plaintiff's Evidence. Rex Rondon said he owned the pheasants, had bred and reared them They had run about freely in his grounds and: sometimes went on to neighbours' properties. On such occasions they always returned; The birds were so tame that they played 'marbles with his five children, and "Were in the habit of playing with other children at Matata. DcfencU rant's predecessor had encouraged >the birds to go on to the property now occupied by Penny.

Plaintiff said that there was no ■'feeling' between himself arid defendant but lie had had occasion to -speak to Penny about crossing his '(plaintiff's) property with a loaded iguri and had also had to speak to - y him about obscene language. Cross-examined by Mr Smith plain ' tiff said that £2 10s each for the "birds could be considered very fair Value. Plaintiff answered in the i --affirmative when asked whether he had ever kept a monkey, and said that it also had been encouraged to .-go on to the property at present -occupied by defendant. Plaintiff had procured a permit from the , police to keep the monkey but had • shot it in order to meet the position. Injuries to Child. : William Ernest Rogers, a ganger •employed by the Railway Department, said he had seen the pheasants oh Penny's property on the date referred to. He had seen them there • twenty minutes before the shooting took place. The birds were walking :about near Penny and his wife and 'Child, who were in the garden. Defendant, though he had made some remarks to witness at the time, had ;not said anything about the birds "being a nuisance. -Witness said lie lieard a child scream and had then seen Penny shooting at the birds •with a .22 repeater rifle. Defendant fired several shots. Witness added that he had had experience of the birds' tameness. Answering Mr Smith, witness said Tenny had informed him that one -of the pheasants had attacked his ■child. He had seen the • child and noticed a slight mark under the eye and a slight mark on the side of the face. Counsel's Submissions. George William Clark, of Edge•cumbe, said that in his opinion the birds were exceptionally tame and "his own children had often played with them. He had never seen the "birds attack anyone. The whole question, said Mr Smith, w.as the right of a landowner to destroy neighbours' animals ~when those animals trespassed. ■Counsel quoted the Impounding Act tind the Fencing Act. So long as a "Wild bird was on a man's property that man had an interest, but when the bird left that inteerst was gone.

Albert George Penny, in ihe box, said 119 lived opposite the plaintiff. He had a good garden, fully protected 011 all sides. On the day in question he was working in. the garden and his child, aged 1 year and 10 months, Avas playing nearby. Two white pheasants flew over the fence but he took no notice as they were not doing any harm. Defendant said that about twenty minutes after the birds flew over he walked down the garden to feed his poultry. He heard his child scream and saw his infant daughter on the ground, with a pheasant, in the manner of a fighting-cock,, poised over her. Defendant said he attempted to kick the bird away but could not. He went into the house for his rifle and shot both birds. Cross Examination. - Defendant described the marks made on his, child's face and said he had no hesitation in stating that they were caused by the pheasant. The previous witness, Rogers, had asked him what happened and lie , told him and another Railway Department employee. He had . gone [ to house and told-Mrs Ron don that lie had shot the birds, and requested that plaintiff should see him about the matter. Defendant said he had telephoned the police. Mr Barry: You are very fond of using a gun, are you not? Defendant: I cannot say that I am particularly fond of a rifle. Mr Barry: You lived at Pukehina at one time? Defendant: Yes. Mr Barry: While you were there you used to shoot cats and dogs, did you not? Defendant: Only wild cats, and I only shot one dog. Defendant said he had" madp no attempt to chase the "birds, awayfrom his property and had shot, them one after the other.

Magistrate's Observations. "The plaintiff was the owner of two tame pheasants," observed Mr Walton, in giving judgment,- "and the birds were in the habit of visiting neighbouring properties, including defendant's. The evidence does not disclose that defendant objected in any way and I. think they were there with his permission. I do not think that the circumstances justified the shooting and judgment will be for the plaintiff for £5." Costs amounted, to £3 12s 6d.