77 Mo. 242 | Mo. | 1883
This suit originated in a justice’s court, and was for the recovery of double damages for the killing of plaintiff’s dog by defendant. From a judgment against him in the justice’s court, plaintiff’ appealed to the circuit court of Linn county, where he obtained a judgment, from which defendant has appealed. At the trial in the circuit court, plaintiff offered evidence of the value of the dog which defendant admitted he killed on his own premises. Defendant then introduced evidence tending to prove that the dog had frequently chased, worried and killed defendant’s sheep, on his farm, and that he was killed on defendant’s premises. The plaintiff, in rebuttal, introduced evidence tending to prove that his dog had never chased, worried or killed any of defendant’s sheep, and had not Returned to defendant’s premises at the time he was killed, to do any mischief. This was all the evidence offered, except the deposition of one Jno. Burnes, taken and offered by defendant, which the court excluded, which ruling will be hereafter noticed.
For plaintiff the court instructed the jury:
I. That the law recognizes the right of property in dogs; and if the jury find from the evidence that defendant caused the plaintiff’s dog to be .killed, as complained of, then plaintiff is entitled to recover from defendant the full value of the dog, as shown by the evidence, at the time
2. The mere fact that the dog was on defendant’s premises at the time of the killing complained of, will not justify defendant in causing the dog to be killed, but to justify such killing the jury must further believe from the evidence that the dog had prior to that time chased, injured, maimed or killed defendant’s sheep or other domestic animals, and that plaintiff had notice thereof; or that the dog was, at the time of such killing, in the act of chasing, injuring, maiming or killing such domestic animals of defendant.
3. Unless the jury find from the evidence that the dog, prior to the time defendant caused him to be killed, had chased, injured, maimed or killed the sheep or other domestic animals of defendant and that plaintiff' had notice thereof, or that the dog at the time of the killing was in the act of running, injuring, maiming or killing such domestic animals of defendant, the jury are hound to find their verdict for plaintiff in some amount, even though it may not be greater than nominal damages.
The court of its own motion gave the following instruction :
2. If the jury believe from the evidence that at any time before defendant had plaintiff’s dog killed, said dog had destroyed some of defendant’s sheep or lambs, and that the dog had returned upon defendant’s premises apparently for the purpose of destroying other sheep, although at the time the dog was so killed he was not in the very act of destroying or worrying the sheep, then defendant was justified in killing said dog, and the jury should' find their verdict for defendant.
1. If the jury believe from the evidence that plaintiff’s dog had killed, maimed or worried defendant’s sheep or any of them before said dog was killed by defendant’s directions, then defendant had the right to kill or cause said dog to be killed, and the verdict must be for defendant.
2. If the jury believe from the evidence that at any time before defendant had plaintiff’s dog killed, said dog had destroyed some or any one of defendant’s sheep or lambs, and that the dog had returned upon defendant’s premises apparently for the purpose of destroying or worrying other sheep, although at the time the dog was so killed he was not in the very act of destroying or worrying the sheep, then defendant was justified in killing said dog, and the jury should find their verdict for defendant.
4. The jury are instructed that in determining the question as to whether or not plaintiff’s dog was of any actual or real value at the time he was killed, they should take into consideration the habits and qualities of the dog in all respects as disclosed by the evidence in the case.
5. If from all the evidence in the case the jury believe that the dog in question was of no actual or real value, then the jury are bound to find their verdict for defendant.
Section 9 of the act entitled “An act to provide for the registering and licensing of dogs,” approved April 13th, 1877, (Sess. Acts 1877, p. 326,) provides that “In every case where sheep on other domestic animals are killed or maimed by dogs, the owner of such animal may recover against the owner or keeper of such dog or dogs the lull
All of the instructions for plaintiff were, therefore, erroneous. That given by the court of its own motion, taken in connection with the refusal to give the second asked by defendant, indicates the view of the court to have been, that the right to kill the dog did not arise from the killing of one sheep, but only when more than one were killed. While only the plural number is used in the statute in relation to sheep and other domestic animals,, it is not to receive the narrow and literal construction which seems to have been placed upon it by the circuit court. Bishop on Statutory Crimes, § 218; Hall v. State, 3 Kelly 18; Comm. v. Messenger, 1 Binney (Pa.) 273; Nichols v. State, 30 Texas 515. The second instruction asked by defendant should, therefore, have been given without the modification made by the court. The right' to kill the dog exists under the statute, whether the owner- had notice that he had killed the sheep or not. The provision with regard to notice relates exclusively to the penalty of $1 for every day that the owner shall neglect or refuse to kill the dog. All of plaintiff’s instructions announced the contrary, and were for this additional reason erroneous.
