Fenton v. Bisel

80 Mo. App. 135 | Mo. Ct. App. | 1899

GILL, J.

Plaintiff sued the defendant for the value of two fox hounds — one of which was killed and the other so injured as to be worthless, by the defendant’s son, the latter acting on the instructions of his father. The case originated in a justice’s court where plaintiff recovered; the case was again tried in the circuit court, to which it was taken by defendant’s appeal, resulting in a judgment in plaintiff’s favor for $100 and defendant has appealed to this court.

Dogs: unlawful killing: demurrer to evidence. The first complaint is that the trial court erred in overruling defendant’s demurrer to the evidence. We are hardly justified in reviewing this action of the court, because of defendant’s failure to include in his .. _ . . _ abstract the entire evidence. The abstract contains only> brief summary of what counsel seems to think was the general scope of the evidence. Although quoting a portion of the language of some witnesses, yet in other respects the abstract contains only what counsel thinks the evidence tended to prove. But even on the face of the abstract sufficient appears to authorize the court in submitting the issues to the jury. Enough is there shown to authorize the verdict.

Plaintiff and defendant are farmers and reside about four miles apart. On the day in question a relative of plaintiff’s had the latter’s dogs out hunting foxes or wolves in the neighborhood. While so doing the dogs passed through an inclosure where defendant had some sheep. Defendant’s son observing them procured a gun and shot two valuable hounds. The testimony tends to prove that the shooting was done under the instructions of the defendant. While there was some evidence that the dogs were chasing the sheep, there was other and abundant evidence that-the dogs were merely trailing a fox through the premises, were not worrying the sheep, and that the shooting of the dogs was wholly unnecessary for the protection of the stock.

Under this state of the evidence, the. court, in effect, instructed the jury, that if the dogs were shot by defendant’s direction he was then liable to plaintiff for their value, provided, however, the dogs were not at the time chasing and worrying the sheep and that the defendant’s son had no reasonable cause to believe that said shooting was necessary in order to prevent the dogs from killing or injuring the sheep. But if the dogs were chasing the sheep and defendant’s son had reason to believe it necessary to ldll the dogs so as to protect the sheep, then defendant could not be held for the damages. The jury was also told that defendant could not justify the shooting the dogs merely because they were at the time on his premises.

-.-. instructions: trespass. There can be no reasonable objections urged to the court’s charge. The instructions fairly comprise all the law applicable to tbe facts. In this state dogs are property and no one has the right to kill them except for jug£ caxise. They may be killed however to protect one’s property, but not simply because they are found on such other’s land. Woolsey v. Haas, 65 Mo. App. 198; Gillum v. Sisson, 53 Mo. App. 516.

The complaints relating to matters of evidence and the court’s action in refusing certain instructions are found without merit. The issues were fairly tried, the court’s instructions were all that were needed and the judgment must be affirmed.

All concur.